Taffe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

HENRY GEORGE TAFFE, Case No. 1:23-cv-700

Plaintiff Barrett, J.

Bowman, M.J.

v.

GIVAUDAN FLAVORS CORPORATION,

Defendant

REPORT AND RECOMMENDATION

Plaintiff Henry George Taffe, a black man, was hired by Givaudan Flavors

Corporation in late August 2021. Seven months later in March 2022, he complained of

two incidents of racial discrimination and asked to remain off work while the company

investigated. Defendant’s investigation did not support Plaintiff’s complaints. Then, in

meetings held in April and May 2022, Plaintiff did not accept the results of the investigation

or return to work. The stalemate continued. Defendant both expanded its investigation

and continued to pay Plaintiff. But Plaintiff never returned to work. Instead, after nearly

six months of paid administrative leave, Defendant terminated Plaintiff, citing his

unacceptable behavior during meetings with company representatives and “refusal to

have a respectful two way discussion … regarding your return to the mechanic role for

which you were hired.”

Plaintiff filed suit for race discrimination and retaliation under 42 U.S.C. § 1981.

The case is now before the Court on Defendant’s motion for summary judgment, which

has been referred to the undersigned magistrate judge for initial consideration and a

report and recommendation. In addition to the motion for summary judgment, Defendant

has filed a motion for sanctions for spoliation. For the following reasons, the undersigned

recommends that Defendant’s motion for summary judgment be granted, and that

Defendant’s motion for sanctions be denied as moot.

I. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard, a court must

view the evidence and draw all reasonable inferences in favor of the nonmoving party.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). And

Defendant, as the moving party, has the burden of showing an absence of evidence to

support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

However, once the moving party has met its burden of production, the nonmoving party

cannot rest on her pleadings, but must present significant probative evidence to defeat

the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-

49 (1986).

After a moving party has carried its initial burden of showing that no genuine issues

of material fact remain in dispute, the burden shifts to the non-moving party to present

specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co., 475

U.S. at 586-87. “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v.

Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–Bradley Co., 801

F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the

non-moving party must present probative evidence that supports its complaint. Anderson,

477 U.S. at 249-50. The court then determines whether the evidence requires submission

to a jury or whether one party must prevail as a matter of law because the issue is so

one-sided. Id. at 251-52. To demonstrate a genuine issue of fact, the opposing party

“must do more than simply show that there is some metaphysical doubt as to the material

facts.... Where 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 for trial.’” Matsushita, 475 U.S. at 587

(citation omitted).

II. Findings of Fact

In August 2021, Givaudan maintenance supervisor Mike Scheben interviewed

Plaintiff Taffe as a third-shift maintenance mechanic II at Givaudan’s Carthage facility.

Plaintiff identifies as black or African American.1 Scheben was so impressed with Taffe

that, within minutes of his interview, he told HR to offer Taffe the job. At the same time,

Givaudan hired Bengie Whittle, a white or Caucasian man, as a second-shift maintenance

mechanic I at the Carthage facility. (Taffe Dep., Doc. 19-1, PageID 101; Bell Dep., Doc.

25-3, PageID 575.) Givaudan hired Taffe at a higher mechanic level than Whittle and paid

Taffe three dollars more per hour than Whittle (Doc. 19-1, PageID 62; Doc. 19-2, PageID

117; Doc. 29-1 at ¶ 2.) While Taffe and Whittle were both offered sign-on bonuses, Taffe

was eligible to receive his after 30 days of employment, while Whittle had to wait 60 days

to receive his. (Id.)

1Plaintiff’s complaint uses the term “African American” but in audio recordings filed of record, refers to

himself as “black.” In Smith v. P.A.M. Transport, Inc., 154 F.4th 375 (6th Cir. 2025), the court recognized

that “caselaw reflects the basic reality that “[c]olor-based language denotes race in common parlance:

[c]olor terms such as ‘Black’ and ‘White’ commonly designate specific racial groups.” Id. at 387, quoting

Vinay Harpalani, Civil Rights Law in Living Color, 79 Md. L. Rev. 881, 887-88 (2020).

Taffe and Whittle began work on the same day, August 23, 2021. (Id.) Though

hired for different shifts, they went through new hire training together from August 23 to

September 6, 2021. (Doc. 19-1, PageID 64; Doc. 25-3, PageID 575.) Taffe made no

complaint during training, or for the next seven months. Around March 19, 2022, another

mechanic, Marshall Stevens, left Givaudan. At the time, Taffe told his supervisor and

multiple co-workers (including Whittle) that he wanted Stevens’s toolbox. A “toolbox” is a

Givaudan-owned work bench with a toolbox on top where employees store their Givaudan

tools and personal effects. No one objected to Taffe’s request. But on Stevens’s last day,

while Taffe was off work, Whittle took possession of Stevens’s toolbox. (Doc. 19-1,

PageID 72-73; Doc. 25-3, PageID 574, 577.)

When Taffe returned to work and saw that Whittle had taken the toolbox, he stated

that he would not be bullied. (Doc. 19-1, PageID 73). Thereafter, two maintenance

workers put up “no bullying” signs. The signs were swiftly removed - apparently before

either Whittle or Taffe saw them - and the two men were subsequently fired. (Doc. 25-3,

PageID 582-583.)

On Friday, March 25, 2022, Taffe and Whittle both complained to a manager, Dan

Unterer, and to a maintenance lead, Marty Jones, about the toolbox. Ultimately Whittle

agreed to move to another toolbox. (Doc. 27-3, PageID 894.) In a conversation with

another mechanic, Taffe inquired if Whittle was going to go to HR about the toolbox. Taffe

then stated that he was upset about the toolbox in part because Whittle had used a highly

offensive racial slur, the n-word, during their shared orientation nearly seven months

earlier.2 (Doc. 19-1, PageID 73; Doc. 25-3, PageID 580-81.) Taffe later repeated his

2Plaintiff has made inconsistent statements about whether Whittle spoke or sang the offensive word. In his

EEOC charge, Taffe stated that Whittle had “used the n-word in my presence while singing along to a song.”

assertion to Unterer that Whittle had directed the n-word toward him during orientation.

(Doc. 19-1, PageID 74.) Taffe reported that he felt unsafe continuing to work at the plant.

He testified that Unterer told him to leave for the night and that HR would follow up. (Id.;

see also Doc. 27-3, PageID 894-895.)

On Saturday morning, March 26, Taffe texted HR manager Allison DeGraaf to

report that Whittle had used a racial word, writing: Good morning this is George. I’m

text[ing] you to notify me by email. gerogetaffe@yahoo.com. I have reported racial word

towards me by Benjamin. I also believe I have received different consequences than my

peers. Thank you I look forward to your reply. (Doc. 19-2, PageID 186; Doc. 19-1, PageID

75.)

DeGraaf promptly replied that Givaudan takes his concerns very seriously and

asked Taffe to provide a statement so she could start investigating (Id.) DeGraaf followed

up with an email:

As I mentioned in my text message I take your concerns very seriously.

Please provide a statement of events/concerns that I can use to investigate.

Once I have that information I will arrange a time for us to meet. When are

you scheduled to work next?

(Doc. 19-3, PageID 224-25; Doc. 19-1, PageID 75-77.)

Taffe stated he was scheduled to work that night and asked if he should report.

Four minutes later, Taffe emailed that he did not “feel comfortable going in.” DeGraaf

responded that Unterer “has a plan to adjust schedules so you and Benji will not overlap.

Could you connect with Dan and see if we can make this work temporarily while we

(Doc. 19-1, PageID 109-110; see also Doc. 1, ¶ 11, PageID 3 (alleging that Whittle “used racial slurs in

[Plaintiff’s] presence while singing along to a song.”) But Taffe testified in his deposition that he was unsure

“if there was music playing” when Whittle said the n-word or whether Whittle was singing to a song. (Doc.

19-1, PageID 78.)

investigate?” Taffe responded that he did not have Unterer’s contact information and

added: “I don’t think this is fair in my judgment.” (Id.)

DeGraaf then asked Taffe to call her and provided her cell phone number. Taffe

responded with three emails, saying “I would rather not chat [by] phone” and “This is

serious and not to be taken lightly” and “Do I report to work at 11:30?” (Id.) DeGraaf

responded by email:

I am taking this issue very seriously and felt a phone call today would be

appropriate to discuss your work schedule for the weekend. Dan has

arranged for Benji to leave work by 10 and I understand they reached out

to you and asked you to start at 11:00. I will leave the decision on whether

[to] work tonight up to you. Please let me know your decision.

(Id.) Taffe decided not to work, writing: “I would rather you do the investigation. Can you

schedule a time to talk?” DeGraaf offered to meet on Monday morning and again asked

Taffe to send his written statement in advance. Taffe complained: “You never asked for

a written statement for any other investigation” but offered to “bring what I have.” (Doc.

25-3, PageID 610.) Taffe agreed to meet Tuesday. (Id.) He never provided a written

statement. (Doc. 19-1, PageID 76-77; DeGraaf Aff. ¶ 3.)

On March 29, 2022, DeGraaf and site development supervisor Patric Montgomery,

a bi-racial man who Taffe respected, met with Taffe to discuss his complaint. At that time,

Taffe identified three incidents of race discrimination: (1) Whittle’s alleged utterance of

the n-word in the presence of Taffe and two white coworkers during training in late August

or early September 2021 (Doc. 19-1, PageID 79-80; DeGraaf Dep., Doc. 27-1, PageID

810-811); (2) Scheben’s issuance of a verbal attendance warning to Taffe but not to

Whittle (Doc. 19-1, PageID 77, 99); and (3) that Defendant had not included Taffe “in the

talkings for a lead position” even though he was the “best” maintenance mechanic on the

second and third shifts. (Doc. 19-1, PageID 77, 99, 101; Doc. 27-3, PageID 896-97.)

During the March 29 meeting, Taffe asserted that his “life was in danger if [he]

reported to work at Givaudan.” (Doc. 19-1, PageID 77.) Taffe said that he did not feel safe

because his co-workers could push him off the roof and he could get blown up. (Doc. 19-

1, PageID 79.) Given Plaintiff’s complaints and stated fears for his personal safety,

DeGraaff told Taffe he could continue off work with full pay while the Company

investigated. (Doc. 19-1, PageID 76, 80, 90, 96.) On March 31, Taffe asked if his pay

while on leave would include all time for which he had been scheduled to work, including

overtime. (Doc. 25-3, PageID 612).

Thereafter, DeGraaf conducted an internal investigation, during which Whittle

denied using the n-word and reported he thought he and Taffe were friends, showing

DeGraaf multiple friendly text messages. (DeGraaf Aff. ¶ 4; Doc. 27-3, PageID 902-03.)

The two coworkers that Taffe had identified as witnesses also denied hearing Whittle use

the n-word. (Doc. 27-3, PageID 896-97; Doc. 27-1, PageID 786). Other employees also

denied that Whittle had ever used the slur, and consistently reported that they thought

Whittle and Taffe were friends. (DeGraaf Aff ¶ 5; Hotopp Dep., Doc. 28-1, PageID 938.)

In addition to the n-word investigation, DeGraaf investigated whether Scheben had

disciplined Taffe more severely than Whittle for an attendance violation. But she

determined that Scheben had given Whittle a similar attendance warning. (Doc. 26-3,

PageID 738-39; Doc. 27-1, PageID 793-94; DeGraaf Aff., Doc. 29-6 at ¶ 6; Doc. 29-7.)

Although the record reflects a small difference in the font size and wording of the two

warnings, (see Doc. 25-3, PageID 585-586), another investigator attributed the difference

to “sloppy recordkeeping.” (Doc. 25-3, PageID 599). Nevertheless, DeGraaf removed the

discipline from Taffe’s record while leaving Whittle’s discipline in place.

DeGraaf also found no merit to Taffe’s suggestion that he had not been promoted

to lead based on his race. Her investigation confirmed that there had been no postings

for a lead position during the seven months that Taffe had been employed. In addition,

Defendant had never promoted anyone to a lead position at Carthage who had not worked

there for three years. (Doc. 27-3, PageID 901; Doc. 27-1, PageID 787-88.)

On April 25, 2022, DeGraaf called Taffe to a meeting to discuss her conclusions.

In addition to DeGraaf and Montgomery, Unterer and plant manager Doug South attended

the meeting, which Taffe secretly recorded. DeGraaf advised that she had found no

inconsistent treatment or race discrimination, but stated she was removing the attendance

warning due to ambiguity concerning whether the policy had been clearly communicated.

She explained there had been no lead roles posted, and that no one could substantiate

Taffe’s allegation that Whittle had uttered the n-word back in August or September 2021.

(Doc. 19-1, PageID 81; April 25 Recording, Doc. 21, 2:40-6:00.)

At virtually every turn, Taffe argued with company representatives and rejected the

legitimacy of Defendant’s findings. When he did so, DeGraaf further explained the basis

for her findings. For example, with respect to the lack of open lead positions, and Taffe’s

assertion that an unspecified co-worker told him that a supervisor had spoken with that

co-worker about a future lead position, she explained that people “routinely talk to

folks….where do you want to grow your career?” but insisted “there’s not been a lead

promised to anyone.” Taffe strongly disagreed. (April 25 Recording, 32:30-33:35.) He

flatly rejected all non-discriminatory explanations, insisting that because he was “the best”

electrician on either second or third shifts, he – rather than anyone else - should have

been talked to about the future position. (Id., 31:20-32:28; see also id., 14:00-15:15.)

Taffe similarly rejected the explanation that both he and Whittle had received

attendance warnings, suggesting that racism was both the cause for Whittle receiving the

same (rather than more severe) discipline and was at play in Defendant’s removal of

Taffe’s warning.

[I]f that had been me I would’ve been terminated…. The reason why you’re

trying to remove the write-up is because you knew it was wrong for me to

get a write-up and him to get the same write-up when he had no days left

[a worse violation]…. When a guy has personal time and sick time and they

white - …let me give it to you [a] simple way – and they white, them days is

maneuvered in [their] favor but when they not white [they’re] not

maneuvered in their favor….

(Id., 37:30-39:51.) When DeGraaf protested, Taffe interrupted and continued his

soliloquy. “We can bend the rules. We can bend them more when you’re white than we

can when you’re black.” (Id., 40:27-40:33).

Plaintiff repeatedly voiced his displeasure with the presence of the materials

manager and plant manager at the April meeting. (See, e.g., Apr. 25 Recording, 17:20-

18:00; see also id., 6:00-17:10, 18:09-18:12 and 18:43-18:45.) He disagreed with South’s

explanation that he was present to show how seriously Defendant took his allegations,

and to help make sure that Plaintiff was able to return to work. (Id., 18:00-18:45). On

multiple occasions, Taffe interrupted and spoke over South. He referred to South as “the

big boss man” and alleged that a “long pattern of racism” existed with Givaudan seeking

“to pacify me like this never happened.” (Id., 42:30-43:05.) Taffe concluded with an

emphatic description of how he interpreted Defendant’s position:

I see this this way. You is the only black - you should be happy that you in

the department. You should be happy that you’re here because if you ain’t

happy, we got a friend of yours who’s another colored guy… [and] he can

be the token that you are….that’s how I see it. That’s the only way I see it

and I’m not going to pretend that I see it any other way.

(Id., 41:45-42:10.)

Throughout the meeting, Taffe brought up additional complaints that he believed

were proof of racism, stating: “I feel I’m in a hostile work environment” and adding that

“some people who’s non-color… think it’s alright for somebody to present themselves and

say they’re a ‘redneck’” which Plaintiff associated with “lynching” and racism. (Id., 7:24-

7:47.) He complained that Defendant recently had hired a Caucasian job applicant instead

of a close friend of Taffe’s. To Taffe, that proved racism because his friend was better

qualified. (Id., 12:00-12:30, 25:20-26:09; see also 31:05-31:15 (“What happened is, …

Guy comes in, he’s good, he’s got color on in, he can’t be too good”.)) He complained

that when his nephew Tevin had worked at Givaudan in the past, Tevin had been unfairly

“cussed out” by managers. (Id., 22:05-24:25.) When South responded that treating any

employee with disrespect was not acceptable and would not be tolerated if brought to

management’s attention, and/or that Givaudan would consider Taffe’s friend for any open

positions for which he had applied, Plaintiff was dismissive. (See id., 29:00-29:10, “you’re

not going to hire Paul because he’s a friend of mine.”)

Taffe was angry about his badge not working when he arrived to the meeting,

insisting that fact “changed the whole tone,” (id., 18:35-18:40), and proved he had been

“suspended.” South denied that Plaintiff had been suspended and DeGraaf explained that

Givaudan was merely honoring Plaintiff’s “request[] not to be here.” (Id., 35:04-36:07.)

But Taffe rejected their assurances that deactivating a badge for an extended leave is a

“normal process.” (Id., 9:39-9:43; 26:56-27:15.) In addition to rejecting all non-

discriminatory explanations, Plaintiff asserted that Whittle should have been “suspended.”

(Id., 20:07-20:25).3

Taffe further complained that Givaudan had violated its agreement to pay him his

full wages, because he had not been paid overtime for which he had been scheduled and

that “pre-existed,” as well as what he would have earned. (Id., 12:58-13:15.) When South

asked for clarification, Plaintiff explained he was “every week short” because he would

have been eligible for “overtime almost every day” due to Givaudan being short-handed.

South responded agreeably, “Let’s fix that, regardless of what you decide.…” (Id., 43:15-

44:08). Thereafter, Defendant paid estimated overtime in addition to fulltime wages

through May 31, 2022.

Throughout the April meeting, Taffe voiced concern that others would view him

negatively because of his complaints, noting that no one in his old department had texted

or called him in the weeks he had been off work. (Id., 15:23-15:35). Plaintiff repeatedly

questioned: “Do you think that you could go back in the department after you brought up

those accusations?” (Id., 15:40-15:45.) He accused the company of making him a “nice

sandwich,” but then putting “dog doo on the sandwich” and asking him to eat it. (Id., 15:45-

16:30; 26:30-26:37.) He stated that he felt unsafe and could not return because a

coworker could push him off a silo if he came back to work. (Id., 18:55-20:20.) In short,

Taffe made abundantly clear that he neither agreed with Defendant’s findings nor felt safe

returning to work.

I’m supposed to feel safe by going back in this same place and working to

where I’m saying this is what kind of discriminating and hostile work

3DeGraaf and South also explained during the meeting that Plaintiff had not been “suspended” but that HR

had merely accommodated his request not to return to work while the investigation continued. (Id., 34:40-

36:10, “you requested not to be here and we honored it…”)

environment that you have, and here you’re telling me it don’t exist. But you

can’t prove it by doing something different….

(Id., 28:45-29:01.)

South tried to redirect on multiple occasions, asking “what do we have to do to get

you back to work?” to no avail. (Id., 18:45-19:21 and 29:30-31:10.) Taffe continually

responded by questioning how he could return. Near the end of the meeting, Taffe stated

he needed more time to consider if he would return and/or under what circumstances.

When South stated that the “ball is in your court,” Taffe agreed to let Defendants know by

Wednesday. (Id., 30:11.)

The next day on April 26, 2022, DeGraaf emailed Taffe to confirm that she had

removed the attendance warning and was “working to adjust your payroll for next week’s

check as agreed” to reflect overtime. The email again asked Taffe to “let us know what

we can do to facilitate a successful transition back to work” and asked for a response by

the next day, before South went on vacation. (Doc. 25-3, PageID 613.)

Taffe did not offer to return to the Carthage facility. Instead, on April 27, Taffe

emailed that he was concerned about a “continuing hostile work environment” at Carthage

(despite Defendant’s findings) and asked to work at a different Givaudan facility, Edison.

(Id.) On April 28, DeGraaf responded that she would “discuss this with the leadership

team and get back to you early next week.” (Id.)

On May 9, DeGraaf emailed Plaintiff to let him know that South had returned from

vacation and she would “be in touch with you soon.” (Id., PageID 614.) On May 11, 2022,

DeGraaf wrote again, setting out the same internal investigation findings in writing

previously communicated to Plaintiff at the April 25 meeting. She explained that there

were no open positions at Edison, but offered that there was an open maintenance

position at the Devon, Kentucky site for which Taffe was welcome to apply if he wished.

She reiterated that Defendant was eager for Taffe to return to Carthage, and asked if he

planned to return on May 17 as “the start of your next work week.” (Doc. 27-3, PageID

901.) Taffe did not respond to her question. Instead, he allegedly responded, “I would like

to work at any location local that has a opportunity. Who I need to do? [sic]” (Doc. 25-3,

PageID 617.)4

The day before the next work week on May 16, Taffe emailed to say that he hurt

his knee cutting his grass and asked to use “all vacation days 8 and 1 float holiday 1 day”

prior to returning to work. (Doc. 19-3, PageID 231.) Three minutes later, he added, “Will

this be enough time to transfer?” DeGraaf wrote back to explain the process for extended

medical absences, including a “return to work note” and – for an absence exceeding 5

days – the completion of Short Term Disability paperwork, which she provided. (Id.,

PageID 232.) She also responded to his newly asserted interest in the Devon, Kentucky

facility. Because Plaintiff did not have his Givaudan computer, she wrote: “I have added

your employee profile for consideration for the Devon role.” (Id.) She offered to reach out

to the HR Manager at Devon on his behalf, but cautioned that a quick decision was

unlikely. (Id.)

On May 22, Taffe texted DeGraaf to request an alternate schedule at Carthage of

7 pm to 3:30 a.m. in lieu of regular shift hours on the second or third shifts.5 (Doc. 25-3,

PageID 629.) DeGraaf said she would check with Taffe’s supervisors. Because Taffe had

been employed on third shift, she asked if third shift would work, to which Taffe responded

4Taffe incorrectly cited Doc. 27-3, PageID 901 as the location of that email. The Court located an undated

email with the cited wording at Doc. 25-3, PageID 617.

5The record is silent on the issue of whether Whittle continued to work second shift.

“No not at all….” (Id.) When DeGraaf asked if 7-3:30 were the “only” hours he could work,

Taffe did not answer other than to restate his desire for a position in Kentucky. (Id.)

Eventually, he explained he wanted to “easy [sic] into second shi[f]ts” by working 7-3:30.

DeGraaf offered to “accommodate a 3-4 week transition,” but stated that “ultimately” he

would need to choose either second or third shift. (Id., PageID 630.)

On May 24, Taffe asked for “[a]ny word on the ky transfer.” DeGraaf replied she

would follow up the next day. (Id., PageID 630-631.) On May 26, she emailed Taffe that

she had learned the interview process had been completed “a couple of weeks ago,” with

the Kentucky position having been filled with an internal candidate. Her email states that

she “asked them to let me know when they have additional openings,” but that in the

meantime, Defendant would like to meet on May 31 to discuss Taffe’s return to Carthage.

Plaintiff again secretly recorded the May 31, 2022 meeting, which was attended by

DeGraaf and two supervisors, Unterer and Scheben. At the outset, Unterer talked about

Taffe’s prior request for hours between the second and third shifts, stating that they would

try to work with Taffe’s request to work 7-3:30. Plaintiff interjected that he would work third

shift so long as Givaudan allowed him to come in and get off a couple hours early, due to

a “family thing.” (May 31 Recording, 5:20-6:41.)

Veering from the relatively cordial start to the meeting, Plaintiff quickly launched

into an angry tirade against Defendant and its findings:

Here's the thing…. The way I see it is two ways. If you don’t believe me,

that means you have to believe him. And if you believe him, that means that

you can’t believe me. So either way, the way I take it is somebody’s being

called a liar. I won’t allow myself for nothing else to register no matter what

you say. So I don’t wanna … I’m - I’m not - I’m a man’s man. Whatever I

feel, nobody else, outside of God, is going to make me move to change that.

So if I feel that this is what this man did and we went on this racist tant, then

there’s nothin inside of me gonna say, “that didn’t happen,” because I will

go to my grave sayin’ that it did. So if you don’t find it by…listen, I’ve already

talked to an attorney. He told me that if I don’t come back to work I’m going

to looked at as insubordination.

(Recording, 6:40- 7:30.)

I don’t want nobody blowing smoke. I don’t like to be tickled if you

understand what I’m sayin’. I said what I said. I stand on what I said. And

I’m not going to pretend that I didn’t say it nor am I going to pretend that,

because you [said] that you didn’t find fault, so that makes me see it as

“somebody’s telling me that I lied.” No matter how you flip it, that’s how I

see it. So it didn’t make a difference of how somebody else sees it, as long

as the person who’s …perception.

(Id., 8:00-8:29.)

Taffe also reiterated his deep suspicion and anger that “too many people in this

plant that knows that I brought up being discriminated against.” (Id., 8:58-9:02.)

I see it simple. I brought up something, somebody told me that didn’t

happen. So you’re telling me I lied! That’s what you’re telling me. That I lied!

And no matter how you flip it, I don’t want somebody to blow any smoke to

tickle me to tell me something different.

(Id., 9:26-9:42.) Plaintiff stated that “all this blew up” over a toolbox, which Taffe

subjectively believed was based on racial animus. Taffe emphasized his point with the

exclamation: “Fuck that [n-word]!” 6 (Id., 10:08-10:17.)

Taffe accused Defendant of denying him a transfer in direct retaliation for his

complaints, because they viewed him “as a liability instead of an asset.” (Id., 11:05-11:40.)

He repeated his disagreements with the Defendant’s investigation and findings, pausing

only briefly to inquire about a prior black employee who had left the maintenance

department. (Id., 13:40-14:10). He warned:

If somebody does something potentially wrong against me I won’t let it go.

…I’m not the kind to brush it off. No! I wanna make sure I know that scar is

there. Not today, for the rest of my life. That’s how it work!

6The undersigned refers to this highly offensive racial slur and/or its derivatives as the “n-word.”

(Id., 17:33-17:50.)

Throughout the meeting, he reiterated complaints about Whittle, the lead position

he believed he was entitled to based on his “higher skill level,” (Id., 14:30-15:30), and the

attendance warning. (See id., 20:16-25:00.) He opined that if he were white, he would

have already been promoted to lead. (Id., 18:50-19:02.) When DeGraaf protested that no

one had ever been promoted to lead at Carthage without working there at least 3 years,

Plaintiff ignored and talked over her. (Id., 19:19-20:00.)

Plaintiff complained that the attendance warning had “changed everything” and he

would never trust the Company again. (Id., 24:00, 25:00.) He stated that he told DeGraaf

“months ago” that he was not happy and did not want to come back, and was not

comfortable being there. (Id., 28:43-28:48; see also id. at 34:25-34:27.) He repeated that

he did not want to be in the plant and could not get past this, (id. at 43:04-43:33), and that

he never wanted to come back. (Id. at 50:43-50:47.) But he also reiterated that he had

been advised by counsel that if he did not return, it would be insubordination. (Id. at

34:50.)

Taffe interrupted others more at the May 31 meeting than he had in April. (Id. at

20:02, 20:17, 21:08, 23:45, 28:40, 29:37, 31:40, 33:50, 36:14, 38:15, 39:17, 40:09, 44:27.)

He referred to himself as “boy” (id. at 23:50), said he was not going to go the back of the

bus, (id. at 24:25-24:45), and said in an exaggerated tone, “yessum, boss, can I dance

for you too, get you a glass of lemonade while we waits?” (Id. at 36:29.) DeGraaf tried to

redirect Taffe by explaining the meeting was about getting him back to work. She warned,

“this conversation is not working toward a collaborative outcome” (Id., 29:15-29:33.)

DeGraaf reacted to the “yessum, boss” comment by stating that the comment was

offensive, but Taffe replied that he sees things a little differently than somebody who

“pretends” to know something about racism or color. When DeGraaf objected, Taffe

launched into a story about his family history, saying that he had “two uncles going to

Vietnam at the same time, both of them came out of a black woman’s vagina.” (Id. at

36:30-36:50; Doc. 19-1, PageID 88.) Taffe looked at DeGraaf when he made the “black

woman’s vagina” comment, repeating the phrase twice more. (May 31 Recording, 36:59-

37:06.)

Expressing open dislike for plant manager South, Taffe also falsely accused South

of telling him at the April meeting, “hey man, it don’t make no difference if you went

through some type of discrimination, get on back to work, boy, yessum, yessum.” (Id.,

51:30-51:46).7 When Taffe made the latter statement, he also shuffled his feet in a dance

(which can be heard on the recording). At that point, DeGraaf responded by stating, “I

think we’re done here” and ended the nearly hour-long meeting. (Id., 51:45-51:51; see

also Doc. 19-1, PageID 89; Doc. 27-1, PageID 825-26; Doc. 27-3, PageID 904.)

DeGraaf testified she felt uncomfortable and disrespected as Taffe intentionally

talked over her on May 31, and felt he was disrespectful to her because she was a

woman. She asked her boss, Tracey Hotopp, to permit her not to meet alone with Taffe

going forward. (Hotopp Dep., Doc. 28-1, PageID 943-45; Doc. 27-1, PageID 811, 819-20,

825-26.) Nevertheless, on the next day, June 1, DeGraaf notified Taffe that “[a]fter

considering your feedback from our meeting yesterday, we have decided to proceed with

an external team to investigate the concerns you raised.” (Doc. 19-3, PageID 240.)

7The April 25, 2022 recording confirms that South said no such thing.

Defendant hired Frost, Brown, Todd attorney Deborah Adams. DeGraaf notified

Taffe that Givaudan would continue paying him his 40-hour-per-week pay, but Defendant

ceased paying him estimated overtime as of June 1, 2022.8

Taffe agreed to meet with Adams at her law firm on June 20. During the interview,

Taffe told Adams he “was not satisfied with the results of the last meeting with the

Company,” and had spoken with an attorney who had advised him to go back to work or

it would be insubordination. (Doc. 24-2, PageID 483.) Taffe accused Adams of not being

neutral because she was paid by Defendant. He told her she had a reputation as a

bulldog, and that she should view Taffe’s relationship with Givaudan as a “no trust

relationship, no trust whatsoever.” (Id., PageID 483-484.) He complained about the

attendance warning and the toolbox, but refused to answer any specific questions such

as which supervisors told him that Scheben had discretion not to give him an attendance

warning, or who used the racial slur or referred to him as boy. (Id., PageID 484-487.)

During his interview, he denied saying that he didn’t get a lead position, stating that “a

white guy had been talked to about the lead position.” (Id., PageID 486.)

Adams documented that Taffe told her several times that “the Company did a

thorough investigation” (a statement he later denied making)9 and that he “has to go with

that investigation, and …simply wants to return to work.” (Id., PageID 486-487.) But

Adams’ notes are silent on the issue of whether Taffe was agreeing to return to third shift

or to the Carthage facility – two points of contention in the May 31 meeting.

8Although the parties agree that Givaudan ceased paying estimated overtime as of June 1, 2022, neither

party cites to documentation of that fact. (But see generally, Doc. 25-3, PageID 574, n.4, report from Bell

that DeGraaf cut off overtime based on Taffe’s behavior at the May 31 meeting.)

9Contrary to Adams’ notes, Taffe’s sworn deposition testimony denies telling Adams that Defendant had

conducted a “thorough investigation.” (Doc. 19-1, PageID 91.)

The June 20 meeting between Adams and Taffe concluded when he asked, “Are

we done here?” Adams stated she was not but that “obviously he was free to go,” and he

left. (Id., PageID 487.) Based on her impression that Taffe had accepted Defendant’s

“thorough investigation” and was agreeable to returning to work, Adams did not proceed

further.

DeGraaf was not always in the office and did not “have a whole lot of recollection…

of that time” due in part to a “family trauma” involving a “sick child.” (Doc. 27-1, PageID

829-830.)10 On Monday, June 27, 2022, Taffe texted DeGraaf to ask about a “time-line

on my return to work,” emailing Adams a similar inquiry the same date. (Doc. 25-3,

PageID 633; Doc 24-3, PageID 476.) DeGraaf responded, “let me follow up with the

investigator [Adams] and get back to you.”

Via email dated June 30, Adams provided Givaudan with a copy of her interview

notes. (Doc. 24-2, PageID 482-487.) When she reviewed them, DeGraaf was concerned

that Taffe’s reported statements about Defendant’s “thorough investigation” and wanting

to return to work did not “align[] with what he said” at the April and May meetings. (Doc.

27-1, PageID 837.) She explained she felt

really kind of stuck and not – not sure what to be doing. We had hoped that

we’d have a little bit more substance on things that we could work through.

And I would have raised the concerns to my leadership. But at this point, I

really didn’t know how to proceed.

(Doc. 27-1, PageID 837). In short, DeGraaf was stymied by her inability to reconcile

Taffe’s statements to Adams with his hostile behavior at the prior meetings, or with his

10DeGraaf left Givaudan in September 2022 for another company. (Id., PageID 762.)

prior assertions that he did not want to return to Carthage because he believed his life

was in danger.

Taffe periodically followed up with Givaudan in July, but DeGraaf provided few

responses. On July 5, Taffe messaged: “I haven’t heard anything any word on returning

to work.” (Doc. 25-3, PageID 633.) On July 7, DeGraaf responded “I will plan to call you

tomorrow with an update.” (Id.) On July 11, 2022, Taffe texted again “any word?” (Id.,

PageID 634.) DeGraaf did not reply. On July 22, Taffe texted DeGraaf “Good morning

any time on when you will be following up with me.” (Id.) On July 25, he texted, “are you

still conducting the investigation?” and “Any word.” DeGraaf responded that she was “still

working on the investigation and hope to have it wrapped up this week. (Id.)

Instead of wrapping up at the end of July, Defendant engaged a second

investigator, Cors & Bassett Attorney Sue Bell, on or about August 8. Defendant hired

Bell to conduct a more thorough investigation than Adams had conducted, including

witness interviews. (Doc. 27-1, PageID 842; Doc. 25-3, PageID 558-559.) On August 15,

2022, Taffe inquired, “You still working on the investigation?” On August 18, DeGraaf

notified Taffe of its decision to engage Bell.

Taffe refused to cooperate with any further investigation.11 (Doc. 19-1, PageID 92-

93; Doc. 19-3, PageID 242-54.) Despite Taffe’s refusal to meet, Bell interviewed 14 other

employees and reviewed numerous documents provided by Defendant relating to his

complaints. But Defendant did not provide Bell with Taffe’s messages between June 27

11Bell and Taffe exchanged numerous messages as she attempted to set up an interview and obtain

information. Taffe denied refusing to participate in response to one email in which Bell states: “It appears

from your emails that you are unwilling to meet with me and participate in this independent investigation,”

(Doc. 25-3, PageID 560). But the undersigned credits Defendant’s account that Taffe refused to cooperate

with Bell’s investigation because no reasonable jury could conclude otherwise based on the written record.

and late July 2022 in which Taffe requested updates about the status of the investigation

and/or his return to work.

Bell’s 29 page report was supported by 27 exhibits. (Doc. 25-3, PageID 572-602.)

Consistent with DeGraaf’s investigation, she concluded that Taffe’s race discrimination

complaints were without merit. (Doc. 25-3, PageID 598-600.) With respect to Whitte’s

alleged use of the n-word, Bell’s report confirmed that all witnesses, including

Montgomery (described as “a man of color”), “simply did not believe [Plaintiff’s] allegation”

that Whittle had ever used the slur. (Doc. 25-3, PageID 584.) The report acknowledged

that over the months since Taffe left work, “it appears that Taffe’s belief that he has been

a victim of race discrimination or animus has continued to worsen,” and that he was

frustrated “regarding the length of time that has passed and multiple investigations without

finality.” (Id., PageID 600.) Bell also concluded that there was “hesitancy among some

members of management to allow [Taffe] to return to the workplace.” (Id. at 598.)

South contacted Taffe on September 12 to request a meeting after receiving Bell’s

report. HR Director Hotopp and South went into the September 15 meeting with prepared

talking points about returning Taffe to work, including a calculation of the overtime the

Company would pay. (Doc. 29-1, ¶ 4; see also Docs. 29-4, 29-5). The same “talking

points” also referred to Plaintiff’s “unprofessional and unacceptable” behavior at the May

31 meeting and warned that such behavior “will not be tolerated.” (Doc. 29-4, PageID

1465.)

South opened the meeting by stating it was to talk about a path forward, that the

Company had engaged in three investigations with the third investigation being a “deep-

dive,” that no evidence was found of race discrimination, and they would like to get Taffe

back to work. (Doc. 19-1, PageID 94; Sept 15 Termination Recording, 3:16-3:43, 4:02-

4:10.) From the start, Plaintiff angrily protested: “I was supposed to have a start date. This

investigation with Deborah Adams was done in June. … I had responded to her on June

27th. We’re in September.” (Id., 5:37). Taffe was highly agitated, antagonistic and rude.

He disclosed that he was recording halfway into the meeting. (Id., 6:00.) Similar to prior

meetings, Taffe quickly launched into an accusatory rant in which, in part, he asserted

that Defendant was retaliating against him. (Id., 6:51.) He complained that Givaudan had

deliberately kept him off work during the investigation and reduced his pay, alluding to the

failure to pay him estimated overtime pay since June 1.

When Hotopp explained that Defendant had hired Bell to conduct a more thorough

investigation, Plaintiff angrily contradicted her, “no you didn’t.” (Id., 9:08.) Taffe then

falsely accused South of telling Taffe that he would face a hostile work environment upon

his return. Taffe so frequently interrupted Hotopp that South asked him to “give Tracey a

moment to respond please?” (Id., 8:47; see also id., 6:10, 6:15, 6:22, 7:29, 9:00, 9:04,

9:08, 9:21, 10:30, 10:42.)

During his lengthy tirade, Plaintiff stated that he refused to be fired for

insubordination and so would return if Defendant let him know “what shift you want me to

go back to and what time.” (Id., 10:13). After being almost continuously interrupted,

Hotopp asked: “I think my question for you George is, is this the way that you’d like to

work because this doesn’t feel –” (Id., 10:23-10:31.) Taffe again interrupted, saying “Now

I’m not going to quit a job making $35 an hour, ma’am” and “I’m not going to do it. I don’t

even want to be –” but did not complete his sentence. South said, “George, let Tracey

ask the question … and think about the question and please answer because this is an

important question.” Taffe again interrupted without answering. Based on Taffe’s

behavior, South and Hotopp ended the meeting. South stated, “We’re not going to sit here

and have this rehash.” (Id., 10:47.) Hotopp stated: “This is not a collaborative, productive

conversation, and if we’re not able to do that, we’re not in a position to move forward.”

(Id., 10:25-10:56.)

Following the September meeting, Hotopp and South terminated Taffe. Hotopp’s

termination letter states in part:

On September 12, Doug South, Carthage Site Director, and I met with you

to discuss your return to work …Our conversation could not progress

because you repeatedly spoke over us saying that you’ve been retaliated

against … You have repeatedly refused to have a respectful two way

discussion with us regarding your return to the mechanic role for which you

were hired. Allison and supervisors met with you on April 25 and May 31

with similar intent to return you to work as a mechanic. During those

meetings, you did not let them speak. During the May 31 meeting, you

yelled and used foul language. Your refusal to let us speak during meetings

to discuss your return to work is inappropriate and unacceptable and

prevents us from continuing your employment. The Company is terminating

your employment effective September 19, 2022.

(Doc. 19-3, PageID 257; Doc. 19-1, PageID 96.) Following his termination, Plaintiff filed

a charge alleging both race discrimination and retaliation with the Equal Employment

Opportunity Commission (“EEOC”). The EEOC issued a Notice of Right to Sue at

Plaintiff’s request in order for him to proceed with this lawsuit. (See Doc. 1-2.)

III. Analysis

A. Summary Judgment on Count 1 – Race Discrimination

Defendant is entitled to summary judgment on Plaintiff’s first claim for race

discrimination. Relevant to employment, 42 U.S.C. § 1981 states in part that “[a]ll persons

within the jurisdiction of the United States shall have the same right in every State and

Territory to make and enforce contracts….” In Amini v. Oberlin College, 440 F.3d 350,

358 (6th Cir. 2006), the Sixth Circuit explained that § 1981 “prohibits intentional race

discrimination in the making and enforcing of contracts involving both public and private

actors.” To prevail on a claim under § 1981, a plaintiff must plead and prove that “(1) he

belongs to an identifiable class of persons who are subject to discrimination based on

their race; (2) the defendant intended to discriminate against him on the basis of race;

and (3) the defendant's discriminatory conduct abridged a right enumerated in section

1981(a).” Id., 440 F.3d at 358. In Comcast Corp. v. Nat'l Ass'n of African Am.-Owned

Media, 140 S. Ct. 1009, 1019 (2020), the Supreme Court held that a plaintiff proceeding

under § 1981 must prove that “but-for” race, he would not have suffered the alleged injury.

Apart from that element, Plaintiff’s state-law claims and his § 1981 claims are analyzed

under the same framework used for Title VII claims. Smith v. City of Toledo, Ohio, 13

F.4th 508, 514 (6th Cir. 2021).

Plaintiff’s opposition to Defendant’s motion is based exclusively on his retaliation

claim, which is a perceived abandonment of his race discrimination claim. See Brown v.

VHS of Michigan, Inc., 545 Fed. Appx. 368, 372 (6th Cir. 2013) (“This Court's

jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have abandoned

a claim when a plaintiff fails to address it in response to a motion for summary judgment.”)

Independent of the abandonment issue, however, Defendant is entitled to judgment

based on Plaintiff’s failure to present sufficient evidence that the Defendant discriminated

against him on the basis of race, or that Plaintiff would not have suffered an injury “but

for” his race.

Plaintiff’s alleged evidence of race discrimination is extremely limited. Taffe made

no report of race discrimination until nearly seven months after he alleges that he heard

a Caucasian co-worker, Bengie Whittle, utter a racial epitaph on a single occasion.

Plaintiff registered his complaint in connection with an unrelated dispute about a toolbox.12

The toolbox dispute was resolved. But during a meeting over the toolbox incident on

March 25, 2022, Plaintiff reported Whittle’s alleged use of the highly offensive n-word in

Plaintiff’s presence months earlier. Plaintiff also alleged that he had received disparate

disciplinary treatment in the form of an attendance warning. By March 29, 2022, he

notified Defendant of an additional disparate treatment allegation about not being

considered for a lead mechanic position. Plaintiff’s complaint in this Court more generally

alleges race discrimination because “[s]imilarly situated white employees were not placed

on extended leaves of absence and were not terminated.” (Doc. 1, ¶ 43, PageID 6.)

Defendant is entitled to summary judgment because Plaintiff has failed to prove

any of his allegations of race discrimination by direct or indirect evidence. In the

alternative, he has failed to rebut Defendant’s non-discriminatory reasons for being

placed on paid leave or for his termination.

There is no dispute that Plaintiff was placed on paid leave at his own request, after

he told Givaudan that he was not comfortable returning to work until an investigation had

been completed. But a stalemate soon ensued. In contentious meetings on April 25 and

May 31, 2022, Plaintiff refused to accept Defendant’s internal investigation findings -

which soundly refuted Plaintiff’s allegations - or to return to work. The stalemate persisted

for another three and a half more months while Defendant employed two attorneys to

conduct an extensive external investigation. Shortly after a September meeting,

12There is no evidence that Whittle took the toolbox, or that Plaintiff’s supervisor failed to stop Whittle from

taking the toolbox, because of race.

Defendants terminated Taffe, citing his “refus[al to have a respectful two way discussion”

regarding his return to work.

The Court first considers Plaintiff’s testimony that he either heard Whittle say or

sing the n-word in late August or early September 2021. Use of such a word by a

supervisor or decisionmaker undoubtedly would constitute “direct evidence” of race

discrimination.

Direct evidence is evidence that, if believed, requires the conclusion that

unlawful discrimination was the but-for cause of an adverse action. Amini,

440 F.3d 350, 359. “In other words: ‘Direct evidence is evidence that proves

the existence of a fact without requiring any inferences.’” Scheick v.

Tecumseh Pub. Schs., 766 F.3d 523, 530 (6th Cir. 2014) (quoting Rowan

v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)).

Racially insensitive statements constitute direct evidence of discrimination

“only if they have some connection” to the adverse action alleged. Griffin v.

Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012).

Gray v. AutoZoners, LLC, No. 22-1069, 2022 WL 16942609, at *3 (6th Cir. Nov. 15, 2022).

Here, even if a jury were to believe Plaintiff’s allegation that his co-worker used the

n-word in Plaintiff’s presence, it is not direct evidence of race discrimination by Givaudan.

An offensive utterance by a low-level co-worker on a single occasion nearly seven months

prior to Plaintiff’s first report of the incident is insufficient to prove a hostile work

environment or Plaintiff’s claim of race discrimination by Givaudan as a matter of law.

To determine if statements are “relevant” as direct evidence of

discrimination or are merely “stray remarks,” courts generally consider: (1)

whether the remarks were made by the decisionmaker or by an agent

uninvolved in the challenged decision; (2) whether the remarks were

isolated or part of a pattern of biased comments; (3) whether the remarks

were made close in time to the challenged decision; and (4) whether the

remarks were ambiguous or clearly reflective of discriminatory bias.

Worthy v. Michigan Bell Telephone Co., 472 Fed. Appx. 342, 347 (6th Cir. 2012) (quoting

Dep't of Civil Rights ex rel. Burnside v. Fashion Bug of Detroit, 473 Mich. 863, 702 N.W.2d

154, 157 (2005)) (additional citation omitted).

Whittle’s alleged slur is not relevant direct evidence against any decisionmaker.13

Taffe offers no evidence that Givaudan knew or should have known of Whittle’s isolated

comment prior to late March 2022. And when Plaintiff finally did report it, Defendant took

prompt steps to alleviate Plaintiff’s concerns by offering to modify his and Whittle’s

schedules to avoid any possible overlap. Taffe rejected that option and elected to stay

home with full pay while Defendant investigated. Ultimately, Defendant determined that it

could not substantiate the remark despite an investigation in which it interviewed multiple

employees, including Whittle and two employees who Plaintiff identified as witnesses. All

witnesses adamantly denied that Whittle had ever used the slur, and directly called the

veracity of Plaintiff’s account into question. No reasonable jury could find Defendant’s

response to Plaintiff’s report of Whittle’s isolated use of a racial slur to have been

inadequate. See Watkins v. Wilkie, No. 1:17-cv-531 (S.D. Ohio Sept. 25, 2019) (granting

summary judgment where plaintiff had failed to show that offensive utterances by

coworker were common or interfered with work performance, where comments not made

in the presence of a supervisor and company conducted a formal fact-finding investigation

upon learning of the remarks).

13Plaintiff’s subjective belief (without evidence) that Whittle was motivated by racial animus when he briefly

took possession of the coveted toolbox in March 2022 is even less relevant to Plaintiff’s claim that

Defendant should be held liable. Undermining any such inference, Whittle quickly accepted a different

toolbox when a supervisor sought to diffuse the dispute. (Doc. 27-3 at PageID 894.) And a low level

coworker’s animus is not animus by Defendant.

In addition to the lack of direct evidence of racial discrimination, Plaintiff’s indirect

evidence does not support his claim. Plaintiff alleges that: (1) Whittle was not disciplined

by a supervisor as harshly for an attendance offense; and (2) Whittle generally was

treated more favorably. For indirect evidence, the familiar McDonnell Douglas burden-

shifting framework is presumed to apply.14

Under this framework, the plaintiff bears the initial “not onerous” burden of

establishing a prima facie case of discrimination by a preponderance of the

evidence. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. To establish a prima

facie case of employment discrimination, a plaintiff must demonstrate that:

(1) he is a member of a protected class; (2) he was qualified for his job; (3)

he suffered an adverse employment decision; and (4) he was replaced by

a person outside the protected class or treated differently than similarly

situated non-protected employees.

White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (citing Arendale v.

City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008); accord Clay v. United Parcel Serv.,

Inc., 501 F.3d 695, 703 (6th Cir. 2007); see also, Burnett v. Carington Health Systems,

U.S. Dist. No. 1:11-cv-324, 2012 WL 6001034 (S.D. Ohio, Nov. 30, 2012).

If a plaintiff establishes his prima facie case, the burden shifts to the defendant to

articulate a legitimate, non-discriminatory reason for the employment decision. If the

defendant carries its burden, the burden shifts once more back to the plaintiff to

demonstrate that the defendant's proffered reason was a pretext for discrimination. Texas

Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-55. (1981).

The instant record supports the first two elements of a claim, insofar as Plaintiff is

a member of a protected class and a qualified mechanic. Plaintiff’s identification of the

14See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973). Comcast was ambivalent

about “[w]hether or not McDonnell Douglas has some useful role to play in § 1981 cases…” Id. at 1019.

But McDonnell Douglas continues to be applied in the Sixth Circuit, with the caveat that a plaintiff still must

establish that the adverse employment decision would not have occurred “but for” race. Id.

third element – adverse action – is less precise. In his complaint, he identifies two adverse

actions: his extended leave of absence and his termination. (Doc. 1, ¶ 43). But Plaintiff’s

opposition to summary judgment attributes those actions to retaliation rather than to race

discrimination. (Doc. 31, PageID 1523.)

To the extent that the Court considers arguments in Plaintiff’s response to

summary judgment to be equally directed toward his race discrimination claim, the Court

considers Plaintiff’s claims of: (1) disparate treatment including the attendance warning;

and (2) a failure to promote Plaintiff to a “lead” position.

“[T]o challenge a discrete act in a disparate-treatment claim, the statute

requires only that a plaintiff show “some harm respecting an identifiable

term or condition of employment.” … Crucially, the harm does not have to

be “significant” or “serious, or substantial, or any similar adjective

suggesting that the disadvantage to the employee must exceed a

heightened bar.” Id. In short, the employment action is adverse if it leaves

the employee “worse off respecting employment terms or conditions.”

McNeal v. City of Blue Ash, Ohio, 117 F.4th 887, 900 (6th Cir. 2024) (quoting Muldrow v.

City of St. Louis, Missouri, 144 S. Ct. 967, 974 (2024), and recognizing “Muldrow may

displace prior cases from our circuit requiring disparate-treatment plaintiffs to show

heightened levels of harm.”)

First up, the attendance warning. Plaintiff admitted that he violated the attendance

policy. (May 31 Recording, 38:59-39:12.) But he asserted that his verbal warning was

unfair, based on his perception that strict enforcement of the policy was discretionary.

Rather than identifying any white comparator who was treated more favorably, Taffe

complained that Whittle should have been disciplined more harshly for his more serious

infraction. (Doc. 27-3, 896, 902.)

In its investigation, Defendant confirmed that Scheben had issued similar

attendance warnings to both Taffe and Whittle for violations of the same policy. Plaintiff

identifies no harm that resulted from the warning, which he did not complain about until

months after receipt. While he cites to a minor difference in the wording of Whittle’s

warning, he cites to no evidence of any impact, which Bell attributed to “sloppy

recordkeeping.” (Doc. 25-3, PageID 599.) Perhaps most importantly, once Plaintiff

complained about the attendance warning, Defendant not only refuted Plaintiff’s assertion

of disparate racial treatment but withdrew the discipline from Taffe’s record, while leaving

Whittle’s in place. So even if the verbal warning was “adverse,” the lack of evidence of

racial animus and the swift withdrawal of the warning defeats Plaintiff’s claim.15 No

reasonable jury could credit Plaintiff’s claim of disparate treatment based on the

attendance warning. See also, generally, Rush v. E.I. DuPont DeNemours and Co., 911

F.Supp.2d 545, 570 (S.D. Ohio 2012).

The undersigned also rejects the general assertion, unsupported by specific facts

or evidence, that Plaintiff was treated worse than white co-workers. Plaintiff does not

identify any similarly situated co-workers apart from Whittle, and fails to identify any

evidence of disparate treatment other than the attendance warning. Subjective beliefs,

standing alone, are not evidence. Contrary to Taffe’s belief that he was treated worse

15At times, an employer may reverse or rescind an employment decision that otherwise would constitute an

adverse action. This may occur, for instance, when a company overrules a rash decision by a supervisor

that does not comply with company policy, or when an employer discovers additional facts after

investigation that support reversal of a preliminary decision. The Sixth Circuit has held that an employer is

sometimes permitted to rescind an initial decision without running afoul of federal law; in essence, a “do-

over.” This pragmatic approach forecloses federal liability in some instances for rash-but-hollow words,

while maintaining federal protections for any employee who suffers real or lasting adverse consequences.

Thus, “when an employer imposes an employment action that would be an adverse employment action but

then quickly reverses the action, the employee has not suffered an adverse employment action.” Keeton v.

Flying J, Inc., 429 F.3d 259, 263 (6th Cir. 2005) (citing Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151

(6th Cir. 2004) and Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir. 2000)).

than Whittle, Scheben hired Plaintiff at a higher mechanic level than Whittle, paid him a

substantially higher wage from the outset of employment, and gave him a bonus after a

shorter probationary period than the bonus offered to Whittle. See Mitchell v. Toledo

Hosp., 964 F.2d at 584-85 (granting summary judgment where plaintiff’s affidavit in

opposition to summary judgment contained nothing more than “rumors, conclusory

allegations and subjective beliefs” of discrimination); Chappell v. GTE Prods. Corp., 803

F.2d 261, 268 (6th Cir. 1986) (“mere personal belief, conjecture and speculation are

insufficient to support an inference of …discrimination”); see also Marbury v. Abraham,

2009 WL 4730603 (S.D. Ohio Dec. 8, 2009) (“[C]onclusory assertions, unsupported by

specific facts made in affidavits opposing a motion for summary judgment, are not

sufficient to defeat a motion for summary judgment.”) (emphasis original, quotation

omitted); L.F.P.IP. LLC v. Hustler Cincinnati, Inc., 533 Fed. Appx. 615, 621 (6th Cir. 2013)

(quoting Rule 56 and holding that self-serving testimony was insufficient to defeat

summary judgment whether statements were not supported by citations to the record).

Last, the undersigned finds no merit to Plaintiff’s race discrimination claim based

on a failure-to-promote – assuming such a claim is properly asserted.16 Plaintiff complains

that Defendant should have promoted him to a lead position. But there is no evidence

that any lead position was ever posted, or that Plaintiff applied for any open lead position.

See Williams v. Hevi-Duty Elec. Co., 819 F.2d 620, 629 (6th Cir. 1987) (where plaintiff

never submitted an application during the time when applications were being accepted,

he did not establish a prima facie case of discrimination). In addition, Plaintiff had worked

at the facility for only seven months, and does not dispute DeGraaf’s statement that

16The claim does not appear in Plaintiff’s complaint. (See Doc. 1).

Defendant had never promoted any employee to a lead position at the Carthage facility

who had not worked there for at least three years.

B. Summary Judgment on Count 2 - Retaliation Claim Count 2

1. Plaintiff’s Prima Facie Case

In Watkins v. BLM Companies, LLC, 644 F. Supp. 439, 450 (S.D. Ohio 2022), the

court set out the framework for a § 1981 retaliation claim.

The elements of a retaliation claim under § 1981 are the same as those

under Title VII. See Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir.

2004). Accordingly, Plaintiff must demonstrate that (1) [he] engaged in

protected activity; (2) [his] exercise of that activity was known by

[Defendant]; (3) [Defendant] thereafter took an action that was materially

adverse to [him]; and (4) there was a causal connection between the

protected activity and the materially adverse action. Boxill v. O'Grady, 935

F.3d 510, 520 (6th Cir. 2019) (citing Laster v. City of Kalamazoo, 746 F.3d

714, 730 (6th Cir. 2014)). The framework for analyzing retaliation claims

depends on whether there is direct or indirect evidence of

retaliation. Perkins v. Detroit Salt Co., No. 20-11211, 2021 WL 5989022, at

*9 (E.D. Mich. Dec. 17, 2021).… When there is only circumstantial evidence

of retaliation, courts use the framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668, (1973) to

analyze retaliation claims under § 1981.

Id. (additional citation omitted).

For the reasons explained below, the undersigned concludes that Plaintiff cannot

prove the “causal connection” component of his retaliation claim. That said, the

undersigned acknowledges that Defendant seeks summary judgment solely on the issue

of pretext, without directly challenging Plaintiff’s prima facie case. But see Loggins v.

Costco Wholesale Corp., 2005 WL 2988464, *10 (W.D. Tenn. Oct. 23, 2025) (holding that

plaintiff had failed to state a prima facie case for its retaliation claim despite failure of

defendant to raise that issue).

As with a race discrimination claim, a plaintiff may prove a retaliation claim by direct

or indirect evidence. Plaintiff asserts that he has direct evidence of retaliation in the form

of a statement attributed to Plant Manager South in Bell’s report under the heading “Mixed

Opinions Regarding Mr. Taffe Returning to Work.” Bell wrote:

Mr. South, who was present at the April 25, 2022 meeting with Mr. Taffe

and had heard about Mr. Taffe's behavior at the May 31, 2022 meeting, saw

nothing to demonstrate Mr. Taffe had been discriminated against due to his

race, and praised the Company for its lack of racially motivated incidents42,

advised: “Personally, I do not feel like George is energy the Company can

afford at the site -- he is a risk to himself and the site's lack of racism."

(Doc. 25-3, PageID 597-598.) In footnote 42 of her report, Bell provides additional context:

Mr. South explained that while some employees have said they believed

they had been treated unfairly, including some Black employees, no one,

prior to Mr. Taffe, ever mentioned race. Rather, the concerns were related

to tenure and other issues.

(Id., n. 42 at PageID 598.)

In the same section, Bell explains that Montgomery “was particularly vocal about

not wanting Mr. Taffe to return ”despite his skills and talent level [being] head over heels

what we need….” (Id.) Montgomery stated that Plaintiff not only was “rude and

disrespectful” in the April 25 meeting, but that, “as a Black man,” he did not believe Taffe’s

allegation that Whittle had used a racial slur months earlier. Montgomery warned “the

Company ‘doesn’t need’ someone ‘wanting to lie on people using a dangerous word that

can get you killed,’” and expressed concern that if returned to the workplace, Taffe might

act as the aggressor in workplace violence. (Doc. 25-3, PageID 598.)

“Direct evidence is evidence that proves the existence of a fact without requiring

any inferences.” Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 530 (6th Cir. 2014)

(emphasis added and additional citations omitted). Even when taken out of context as

Plaintiff does on summary judgment,17 South’s reported statement in Bell’s report requires

an inference to interpret it as direct evidence of a retaliatory termination for making

complaints, as opposed to termination for the manner in which Taffe expressed his

complaints. And in context, the statement more easily lends itself to the inference that

South believed: (1) Taffe’s behavior on April 25 and May 31 was unacceptable; and (2)

Taffe had lied about his claims of discrimination and likely would present additional

spurious claims if reinstated. Having determined that no direct evidence exists, the

undersigned evaluates the remaining evidence under the McDonnell Douglas framework.

Plaintiff is presumed to be able to satisfy the first two elements of a retaliation claim

under that framework: that he engaged in “protected activity” that was “known to” the

Defendant. Plaintiff’s initial informal complaint of race discrimination to Scheben and to

DeGraaf on or before March 25, 2022 was protected activity. And some statements at the

April 25, May 31 and September 15 meetings likely enjoyed similar protection.18

17In his deposition testimony, Taffe mischaracterized another comment made by South. Taffe testified that

South told him during the April 25 meeting that Taffe “would have a hostile work environment no matter

where I go after I’ve complained about a racial issue.” (Taffe Dep., Doc. 199-1 at PageID 196). Taffe made

the same accusation at the September 15 meeting. (September 15 Recording, 9:08-9:25.) The April 25

Recording proves that South said nothing of the sort. It was Plaintiff who insisted that he feared he would

return to a hostile work environment due to his complaints. South merely expressed his understanding of

Plaintiff’s stated concern, while disputing that concern was a basis to avoid returning to work. (Doc. 21,

April 25 Recording at 9:08-9:38.)

18Whether the entirety of Plaintiff’s statements during the March 31, April 25, and September 15 meetings

were “protected” is less certain. In one case cited by Taffe, the court denied the plaintiff’s motion for

summary judgment on a retaliation claim where the employer allegedly had disciplined the plaintiff for calling

her supervisor “‘a f___ing racist,’ ‘a bigot,’ and ‘a piece of sh_t.’” Covington v. Sailormen Inc, No. 1:10-cv-

252-MP-GRJ, 2011 WL 13112567, at *1 (N.D.Fla., June 3, 2011). Id., at *1. Citing Sumner v. United States

Postal Service, 899 F.2d 203 (2d Cir. 1990) and Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d

397, 401 (11th Cir. 1989), the court noted that a complaint that is presented in an “unreasonable” manner

falls outside of the protection of § 1981. Id., at *3. The court further explained that the plaintiff had failed to

prove the disciplinary action would dissuade a ”reasonable employee” from making future discrimination

complaints, as opposed to “merely dissuad[ing] a reasonable employee from raising such complaints in a

comparable manner.” Id. at *5. For the same reasons, the Covington plaintiff had failed to show that the

reprimand was “causally linked” to any protected conduct.

Regarding the third element of his retaliation claim, Plaintiff’s complaint alleges:

“Givaudan took adverse action against [Plaintiff] after he raised concerns that he was

being subject to race discrimination and that Givaudan had not conducted a fair

investigation into his complaints.” (Doc. 1, ¶ 48, PageID 7.) The use of the singular tense

and allegation that Defendant’s “stated reasons for terminating [Plaintiff] are pretext for

illegal retaliation,” (id. at ¶ 50), suggest that Plaintiff alleges that the sole adverse action

at issue is termination. Consistent with that interpretation, Defendant argues on summary

judgment that even assuming that Plaintiff can make out a prima facie case based on

termination, “Givaudan offered a legitimate, non-retaliatory reason” for the termination

and “Taffe has no evidence of pretext” regarding termination. (Doc. 29, PageID 1037.)

In response to summary judgment, however, Plaintiff asserts that Givaudan’s

decision to continue him on extended paid leave without his estimated overtime pay

constitutes a separate and additional adverse action that proves his retaliation claim.

Thus, before proceeding further, the undersigned must consider whether the Defendant’s

decision to discontinue “estimated overtime” payments on June 1 while keeping Plaintiff

on leave constitutes a separate materially adverse action (beyond termination).

In Muldrow, the Supreme Court reiterated that an adverse action for purposes of a

retaliation claim (as opposed to a discrimination claim) remains one that would “dissuade

a reasonable worker from making or supporting a charge of discrimination.” Id. at 348.

There is no dispute that Defendant initially placed Taffe on administrative leave with full

pay at his request.19 Therefore, Defendant’s initial accommodation is not evidence of an

adverse action that would not have dissuaded a reasonable worker from making a

19Defendant initially asked Taffe to return with a modified schedule to avoid overlap with Whittle, but Taffe

elected to stay away from work, with full pay, while Defendant investigated his complaints.

discrimination charge. See Kellar v. Yunion, Inc., ___ F. 4th ___ , 2025 WL 3039894 (6th

Cir. Oct. 31, 2025) (granting a disability plaintiff’s requested disability-based

accommodation is not an adverse action for purposes of retaliation claim).

For the entire time he was on leave, Defendant paid Plaintiff for 40 hours per week.

When he complained on April 25 that Defendant had shorted him for the overtime for

which he presumably had been scheduled when he first went out on leave, South readily

agreed to pay him that lost time. In addition, Defendant paid him all estimated overtime

wages that he could have earned through May 31, 2022. Because Plaintiff remained on

leave at his own request with no change in pay or benefits from March 25 through May

31, 2022, he can prove no ”materially adverse” action during that period of time.

But what about after June 1, when Defendant ceased paying overtime? At the May

31, 2022 meeting, Plaintiff flatly refused to accept Defendant’s determination that it found

no merit to Plaintiff’s race discrimination claim, and would not agree to a return to his shift

at the Carthage facility. So as of May 31, it was Plaintiff’s decision rather than Defendant’s

to continue him on leave. At that point, Defendant had offered to at least temporarily

accommodate Plaintiff’s request for altered hours that did not fully align with either second

or third shifts – not to accommodate any fear of Whittle or others - but based on Plaintiff’s

“preference” for an unspecified “family issue.” Given Plaintiff’s highly adversarial and

disruptive behavior at the May 31 meeting with no sign that he would ever return to work,

Defendant discontinued paying estimated overtime.

This Court has previously considered what amount of proof is required for a plaintiff

to make out a prima facie case when he asserts that a failure to pay overtime constitutes

an “adverse action.”

The Sixth Circuit has recognized that “allegations of a denial of overtime,

properly supported, could constitute an adverse employment

action.” Broska v. Henderson, 70 Fed. Appx. 262, 268 (6th Cir. 2003).

However, plaintiffs proceeding on this theory must demonstrate that they

have “been denied overtime opportunities that others have received” and

show “how much overtime [they] lost....” Id. See also Hall v. Chapman, No.

4:15-CV-13771, 2016 WL 7383685, at *4 (E.D. Mich. Dec. 21, 2016) (“at

the very least, Plaintiff's proposed first amended complaint alleges that he

was subjected to adverse action when Defendant Chapman docked

Plaintiff's pay, took Plaintiff off the overtime list, and started rumors); Broska

v. Henderson, 2003 WL 21518733, 70 Fed. Appx. 262 (6th Cir. June 30,

2003) (the denial of overtime does not constitute an adverse action absent

evidence reflecting the amount of overtime lost and evidence that similarly-

situated employees received the overtime plaintiff was denied); Gates-Lacy

v. Cleveland Dep't of Pub. Safety, Case No. 1:09CV2593, 2011 WL

4368921, at 15-16, fn 2. (N.D. Ohio Sept. 19 2011) (Lost overtime

opportunities can amount to an adverse employment action when the lost

opportunities were “both relatively regular in their occurrence and significant

in their monetary impact).

Baggett v. City of Cincinnati, No. 1:19-cv-1061-SKB, 2022 WL 899675 (S.D. Ohio, March

28, 2022) (granting summary judgment on gender discrimination claim), aff’d, 2022 WL

17337851 (6th Cir. Nov. 30, 2022).

In the record presented, Plaintiff does not point to any evidence regarding the

amount of overtime he lost the opportunity to earn while on leave. Nor does he point to

evidence that any other employee placed on such an extended leave received

“anticipated” overtime pay on an indefinite basis even after Defendant asked them to

return to work and they steadfastly refused. On the other hand, Defendant did not warn

Plaintiff that it would cut off overtime pay if he did not immediately return to work, and

does not dispute that it reduced Plaintiff’s pay to exclude overtime on June 1, 2022. Solely

for purposes of the pending motion, the undersigned will assume that Plaintiff has

sufficient evidence to prove the first three elements of his retaliation claim for both the

denial of overtime pay on continued leave (beginning on June 1, 2022)20 and for his

ultimate termination on September 19, 2022.

That leaves the fourth element of his prima facie case, “causal connection.” For

that final element of his prima facie case, Plaintiff must prove that retaliation was the

determinative “but for” reason for the discontinuation of overtime pay and termination.

Comcast Corp. 140 S. Ct. at 1014.

In the retaliation context, a causal connection between an employer's

actions and a protected activity is established when the protected activity

was the “but-for” cause of the alleged adverse action by the employer. Univ.

of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 186

L.Ed.2d 503 (2013). “But-for” causation means that the plaintiff must furnish

evidence that “the unlawful retaliation would not have occurred in the

absence of the alleged wrongful action or actions of the employer.” Id....

Whether a protected activity was the but-for cause of an employee's

termination is a context-specific inquiry.

Boobnar v. AstraZenica Pharmaceuticals LP, 758 F. Supp.3d 690, 734-735 (N.D. Ohio

2024) (citing Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020), additional

citations omitted). It is not enough to show that retaliation was a motivating factor. See

Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362-63 (2013). Plaintiff must

instead prove that the fact that he made informal complaints (as opposed to the manner

in which he proceeded) was the “but-for” cause of the reduction in his administrative leave

pay and ultimate termination; Kubik v. Central Michigan Univ. Bd. of Trs., 717 Fed. Appx.

577, 585 (6th Cir. 2017).

20Plaintiff cites to no case law to support his position that the continuation of his administrative leave alone

constitutes an additional “materially adverse” action. Until the end of June, Plaintiff resisted all attempts to

return him from leave to the third shift at Carthage. And even when he reported to Ms. Adams that he

wanted to return to work, he did not specify whether he meant a return to third shift at Carthage, or some

other hours or location. Based on the determination that the reduction of overtime pay on June 1 could be

considered to be materially adverse, the undersigned finds no need to further consider whether the

continuation of leave after June 30 was also materially adverse.

The record contains ample evidence that Defendant discontinued overtime pay

and ultimately terminated Plaintiff based on his conduct. On the whole, Plaintiff’s proof of

the rigorous “but-for” causation standard appears insufficient to submit to a jury.

2. Plaintiff Fails to Show Pretext

Even if a reviewing court were to disagree and conclude that Plaintiff’s evidence is

sufficient to establish a prima facie case on his retaliation claim, the undersigned would

still recommend granting summary judgment to Defendant because Plaintiff cannot show

that Defendant’s articulated “legitimate, nondiscriminatory reason[s]” for the reduction in

overtime pay and termination were pretextual. See McDonnell Douglas Corp., 411 U.S.

at 802. Taking adverse action against an employee who acts in a disruptive and

adversarial manner qualifies as a legitimate non-discriminatory reason for discipline, even

if the context in which the inappropriate behavior occurred involves protected activity. See

Rollins v. State of Fla. Dep’t of Law Enforcement, 868 F.2d 397, 399-401 (11th Cir. 1989).

In Rollins, the trial court determined that, notwithstanding a plaintiff’s prima facie

showing that her failure-to-promote was related to the plaintiff’s frequent complaints of

race discrimination, the manner in which Rollins expressed those complaints as opposed

to the fact that the complaints were expressed provided a legitimate non-discriminatory

reason for the employer’s decision. As the trial court put it:

Defendants met their burden of rebuttal through evidence that failure to

promote Rollins was due to her quarrelsome and antagonistic behavior and

preoccupation that everything was racially motivated. Not only did

defendants meet the light burden of rebuttal, but they proved their case far

beyond a preponderance of the evidence. The evidence relating to Ms.

Rollins compels the conclusion that in her career at FDLE she set herself

up as the defender of black interests. In her zeal however, she permitted

racial antagonism, not reason, to become her hallmark, with the result that

any supervisor faced with the prospect of having to supervise her would

have serious reservations and certain difficulty.

Id. at 400.

The Eleventh Circuit agreed that the manner in which Rollins had complained was

unreasonable and was not protected conduct. In other words, evidence that she was a

“disruptive complainer who antagonized her supervisors and colleagues and impaired the

morale of her unit” was “an independent, legitimate basis for the denial of her promotion.”

Id., 868 F.2d at 401. Such unreasonable expression, “even when associated with

complaints of discrimination, has been held to fall outside the protection of section 704(a)

and to provide the employer with a legitimate basis for its action.” Id.

[T]he manner in which an employee expresses her opposition to an

allegedly discriminatory employment practice must be reasonable. This

determination of reasonableness is made on a case by case basis by

balancing the purpose of the statute and the need to protect individuals

asserting their rights thereunder against an employer's legitimate demands

for loyalty, cooperation and a generally productive work environment.

Id., citing Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1145 (5th Cir.

1981). The undersigned finds the reasoning of Robbins to be highly persuasive in this

case. Accord Powell v. Fluor-B&W Portsmouth LLC, No.: 2:20-cv-1977-JLG, 2023 WL

6318096, *8 (S.D. Ohio Sept. 28, 2023), quoting Jones v. St. Jude Med. S.C., Inc., 504

Fed. Appx. 473, 480 (6th Cir. 2012) (“An employee may claim protection for activities

opposed to alleged discrimination so long as the manner of the employee's opposition is

reasonable.”); see also Armstrong v. Index J. Co., 647 F.2d 441, 448 (4th Cir.

1981) (holding that § 2000e-3(a) “was not intended to immunize insubordinate,

disruptive, or nonproductive behavior at work.... An employer must retain the power to

discipline and discharge disobedient employees”).

Here, all evidence of record supports Defendant’s explanation that it discontinued

overtime pay on June 1 due to Plaintiff’s disruptive behavior at the May 31 meeting.

Likewise, the recordings of all three meetings (April 25, May 31, and September 15)

confirm the Defendant’s stated reasons for termination. In its termination letter, Defendant

state that Plaintiff is being terminated for the “inappropriate and unacceptable” manner in

which he conducted himself during this meetings with company representatives, including

repeatedly speaking over them, refusing to “have a respectful two way discussion”

regarding his return to employment, and yelling and using foul language at the May 31

meeting. (Doc. 19-3, PageID 257.)

Because Defendant offered legitimate, non-discriminatory reasons for its actions,

the burden shifted to Plaintiff to show that Givaudan’s articulated reasons were not, in

fact, the true reasons for its actions, but were a pretext for discrimination or retaliation. In

Kalyango v. Ohio University, 723 F. Supp.3d 627 (S.D. Ohio 2024), this Court recently

set out the relevant standard.

A plaintiff can show pretext in one of three ways by showing that the

employer's stated reason:

(1) had no basis in fact, (2) did not actually motivate the employer's

action, or (3) were insufficient to motivate the employer's action. Manzer

v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).

A defendant's proffered reason cannot be proved to be a pretext “unless

it is shown both that the reason was false, and that discrimination [or

retaliation] was the real reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Harris v. Metropolitan Government of Nashville and Davidson County,

Tenn., 594 F.3d 476, 486 (6th Cir. 2010).

Additionally,

[i]f the employer had an honest belief in the proffered basis for the

adverse employment action, and that belief arose from reasonable

reliance on the particularized facts before the employer when it made

the decision, the plaintiff will fail to establish the basis for the decision

was pretextual. Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.

2001) (citation omitted); Smith v. Chrysler, 155 F.3d 799, 807 (6th Cir.

1998) (“In deciding whether an employer reasonably relied on the

particularized facts then before it, we do not require that the decisional

process used by the employer be optimal or that it left no stone unturned.

Rather, the key inquiry is whether the employer made a reasonably

informed and considered decision before taking an adverse employment

action.”).

Id., 723 F. Supp.3d at 639-640 (quoting Halfacre v. Home Depot, U.S.A., Inc., 221 Fed.

Appx. 424, 430 (6th Cir. 2007)).

Plaintiff first argues that he “did nothing inappropriate” in the meetings, suggesting

that he has sufficient evidence to prove Defendant’s stated reasons have “no basis in

fact.” (Doc. 31, PageID 1523.) But the record overwhelmingly proves the opposite – that

Defendant’s stated non-discriminatory reasons for its adverse actions are firmly grounded

in fact.

With respect to overtime pay, for example, Plaintiff admits that Givaudan paid him

both his fulltime pay and overtime through May 31. He also admits that Defendant was

ready to return him to work prior to the May 31 meeting, even offering to modify his hours

on a temporary basis at his request for an unspecified “family reason.” The cessation of

overtime pay and DeGraaf’s failure to respond to his messages immediately after the

meeting strongly supports rather than undermines Givaudan’s position that its

discontinuation of overtime pay was based on Taffe’s disruptive behavior on May 31 and

was not based on the fact that he made a complaint of discrimination.

Plaintiff also concedes that at the April 25, May 31, and September 15 meetings,

he “relentlessly shared his belief that he had been discriminated against and that

Givaudan was retaliating against him,” and that his tone “may have been adversarial.”

(Doc. 31, PageID 1522-1523.) In his only challenge to whether Defendant’s reference to

his disruptive behavior was grounded in fact, Plaintiff argues that he “did not shout or

curse.”(Id.) But Plaintiff cites to no authority supporting the proposition that an absence

of a “shout or curse” insulates a plaintiff from discipline for the type of highly adversarial

and disruptive behavior he exhibited, and the undersigned has found none. In any event,

no reasonable juror listening to the May 31 audiotape could deny that Plaintiff did in fact

curse (“Fuck that n[word]”) and repeatedly raise his voice. (See, e.g., 40:00-56:10.) In

sum, Plaintiff strikes out in his attempt to prove that his employer’s stated reasons for the

adverse actions were not grounded in fact.

For much the same reasons, Plaintiff cannot show that those stated reasons did

not actually motivate Defendant or were somehow “insufficient to motivate” Givaudan’s

actions. See Rollins, 868 F.2d at 401. Plaintiff complains that this Court should not make

that determination on summary judgment because it “requires weighing facts, making

judgments of character, and determining… credibility.” (Doc. 31, PageID 1507.) Perhaps

Plaintiff’s argument would be more persuasive if he had not taped the meetings. But –

much like video evidence - the audio recordings provide incontrovertible evidence that

supports Defendant’s position that Plaintiff acted unreasonably in his words, tone and

demeanor at all three meetings, and that his behavior was particularly inappropriate at

the May 31 and September 15 meetings. “When opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2017). Here, no

factfinder who listens to the three recordings could find that Defendant’s stated reasons

for discipline had no basis in fact, did not actually motivate Defendant, or were insufficient

to support the adverse actions.

The meager evidence Plaintiff cites to support his assertion that retaliation was the

real reason for his termination falls well short of proving pretext, in part because he cannot

show that Defendant’s proffered reasons for its actions (his disruptive behavior) were

false. To prove that retaliation or discrimination was the real reason for termination,

Plaintiff points to his alleged willingness to return to full employment at the end of June

2022, and to Bell’s report of South’s statement about his reluctance to return Plaintiff to

the plant floor. Even if the referenced evidence were sufficient to raise an issue of fact on

whether retaliation played a role in his termination (a conclusion the undersigned does

not reach), Defendant would still win summary judgment because Plaintiff cannot prove

Defendant’s proffered reasons for the adverse actions were false.

In any event, Plaintiff’s so-called evidence of retaliation is weak at best. Take his

reported statement to Adams in late June that he wanted to return to work, without

indicating whether he intended to return to third shift at Carthage (significant points of

contention up to May 31).21 Plaintiff argues that Defendant’s failure to immediately

reinstate Plaintiff in July is proof of retaliatory motive, because Defendant should have

understood that his previous reluctance to return over “safety concerns” had fully

“abated.” (Doc. 31, PageID 1522). The undersigned disagrees. Plaintiff’s professed new

willingness to return to work at the end of June did not erase the unreasonable conduct

cited by Defendant for its adverse actions. In addition, Adams’ notes reflect Taffe’s refusal

21On June 27, Plaintiff asked DeGraaf about a “time-table” for his return, without providing any clear

indication that he wished to return to third shift at Carthage. In response, Defendant promptly reached out

to Adams to obtain her report, which it did not receive until June 30.

to answer her investigatory questions and open mistrust of both Adams and Givaudan.

Given the inconsistencies between Taffe’s earlier statements and behavior and Adams’

report,22 it was objectively reasonable for Defendant to hire Attorney Bell to complete a

more comprehensive investigation before proceeding with reinstatement. But Plaintiff

refused to participate in Bell’s investigation. And when Plaintiff was advised of Bell’s

conclusions on September 15, he continued his disruptive behavior, amplifying the

grounds for his termination.

The only other evidence on which Plaintiff relies to show that retaliation was the

real reason for Defendant’s actions is South’s comment, recorded in Bell’s investigation,

that he did not want to bring Goerge back due to his “energy” and based on a belief he

was “a risk to himself and the site’s lack of racism.” For the reasons previously discussed,

the comment is susceptible to more than one interpretation. In context, it suggests little

more than that South then believed (after three investigations found no merit to Plaintiff’s

claims and two meetings in which Taffe had acted unreasonably and inappropriately) that

Taffe had lied when he first claimed that he had been the victim of racism, with a “risk”

that he would continue to do so. And like Plaintiff’s assertion that he suddenly believed in

the Defendant’s “thorough investigation” and wished to return to work at the end of June,

South’s remark does not erase proof of Plaintiff’s unreasonable and openly hostile

conduct in April, May and September – all of which supported Defendant’s articulated

reasons for its actions.

22Considering Taffe’s deposition testimony in this case denying that he told Adams that Defendant had

conducted a “thorough investigation,” DeGraaf’s expressed concerns about those inconsistencies appear

to have been well-founded.

Finally, the case law that Plaintiff cites in opposition to summary judgment on his

retaliation claim is easily distinguishable. For example, in Hertz v. Luzenac Am., Inc., 370

F.3d 1014, 1021 (10th Cir. 2004), the Tenth Circuit affirmed the trial court’s rejection of

the jury instruction, “[u]nreasonable conduct does not constitute protected activity,”

because the record showed insufficient evidence to warrant that instruction. But unlike

Plaintiff’s lengthy and disruptive tirades in this case, the facts in Hertz involved a single

and isolated unguarded-in-the-moment retort to a supervisor’s derogatory comment. The

Tenth Circuit held that the “solitary event” did “not reach the threshold of

unreasonableness necessary to deprive [plaintiff] of the protections of Title VII.” Id. at

1022. Needless to say, neither Hertz nor any other case cited compares to the undisputed

audio recordings that so clearly demonstrate the unreasonableness of Plaintiff’s conduct

in this case.

In sum, the law does not require automatic submission to a jury of any case in

which a plaintiff charges “retaliation” before he is fired. The record presented in this case

demonstrates that Plaintiff cannot prove his prima facie case on either his race

discrimination or retaliation claims. In addition, even if Plaintiff could prove a prima facie

case on either claim, Givaudan still would be entitled to judgment because it articulated

valid, non-discriminatory reasons for the adverse actions it took against Plaintiff, which

Plaintiff has failed to rebut as pretextual.

IV. Motion for Sanctions for Spoliation

On the same date that Defendant moved for summary judgment, it filed a motion

seeking sanctions under Rule 37(e)(1) based on Taffe’s alleged spoliation of evidence.

The motion presents serious charges regarding Taffe’s failure to preserve a cell phone

that contained evidence, including text messages between Whittle and Taffe, that likely

favored Defendant. The motion seeks both an adverse-inference instruction should this

case proceed to trial, and an award of attorney’s fees and costs.

In response, Taffe and his counsel deny any intentional misconduct. In the

alternative, Taffe argues that Defendant could have and should have made greater

attempts to locate the relevant evidence from other witnesses, including Whittle.

Based primarily on the recommended grant of summary judgment in Defendant’s

favor, the undersigned recommends that Defendant’s motion for sanctions be denied as

moot.

V. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT Defendant’s motion for

summary judgment (Doc. 29) be GRANTED, that Defendant’s motion for sanctions (Doc.

30) be DENIED AS MOOT, and that Plaintiff’s claims be dismissed with judgment to be

entered in Defendant’s favor.

__s/Stephanie K. Bowman ____

Stephanie K. Bowman

United States Chief Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

HENRY GEORGE TAFFE, Case No. 1:23-cv-700

Plaintiff Barrett, J.

Bowman, M.J.

v.

GIVAUDAN FLAVORS CORPORATION,

Defendant

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).