stating that “this Circuit has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time, that close proximity is deemed indirect evidence such as to permit an inference of retaliation to arise”
How later courts described this case
- stating that “this Circuit has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time, that close proximity is deemed indirect evidence such as to permit an inference of retaliation to arise”
- holding that derogatory comments by supervisor constituted direct evidence of discriminatory animus, because although manager made ultimate decision to terminate the plaintiff, supervisor made recommendation to manager and was therefore meaningfully involved in the decision to fire the plaintiff
- finding that in a national origin discrimination case, "temporal proximity between the discriminatory act and the termination creates a ... scenario, such that causation may be demonstrated' with a lesser quantum of evidence than in other cases not involving such a tight time line of events.”
- holding that supervisor’s statement that she fired the plaintiff for illegal reasons was direct proof and distinguishing supervisor’s statement’s from isolated discriminatory statements of non-supervisors who were not involved in decision to terminate the plaintiff
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)
358 F.3d 408,421 (6th Cir. 2004), overruled on other grounds, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
The opinion
KENNEDY, Circuit Judge,
concurring in part, and dissenting in part.
I agree with the majority that Plaintiff failed to establish that he is disabled and accordingly agree with the decision to affirm the district court’s grant of summary judgment on the disability discrimination claim. I also agree that the district court improperly granted summary judgment on the claim of national origin discrimination. However, for reasons explained below, I disagree with the majority’s decision to reverse the district court’s grant of summary judgment on claims of age discrimination and retaliation.
A. Age Discrimination
With regard to direct evidence of intentional age discrimination, the district court noted that the “only evidence that Plaintiff has offered regarding his claim of age discrimination is his own affidavit attesting to the fact that on March 8, 2000, Bailey informed him that ‘he was no spring chicken’ and that he would not be a supervisor at the facility because of his age.” DiCar-lo, No. 5:01CV1072, slip op. at 9-10. The district court found, and I agree, that this evidence was insufficient to withstand a motion for summary judgment. Id. Plaintiff may not establish a prima facie case of age discrimination based on vague, ambiguous, or isolated remarks. Hein, 232 F.3d at 488 (citing Phelps v. Yale Sec., Inc., 986 F.2d 1020 (6th Cir.1993) (finding no prima facie case of age discrimination, even though the plaintiffs supervisor twice stated that the plaintiff was too old to continue at her prior secretarial position, because these were only isolated and ambiguous comments)). In the present case, a single remark about Plaintiffs no longer being a “spring chicken” is exactly the type of an isolated remark that is insufficient to establish age discrimination.
Furthermore, to establish a prima facie case, Plaintiff must establish “not only that plaintiffs employer was predisposed to discriminate on the basis of age, but also that the employer acted on this predisposition.” Id. Had he not been promoted to a supervisor position, Bailey’s alleged remark could have evidenced age discrimination. However, in the present case, Plaintiff was fired for substandard performance. Plain *423 tiff simply failed to present any direct evidence that his evaluations were motivated by age bias.
With regard to circumstantial evidence of disparate treatment, the district court noted that “ ‘to establish a prima facie case of age discrimination ..., a plaintiff must prove by preponderance of the evidence that: (1) he was at least 40 years old at the time of the alleged discrimination; (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he was replaced by a younger person.’ ” DiCarlo, No. 5:01CV1072, slip op. at 10 (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1328 (6th Cir.1994)). The district court found that Plaintiff failed to show either prong (3) or (4). Although I do not agree that he had to establish prong (4) since apparently he was not replaced by anybody at all, I agree that Plaintiff failed to establish that he was qualified for the position.
B. Retaliation
The majority asserts that “[ajlthough Bailey testified that he did not know that DiCarlo’s EEO complaint implicated Bailey personally, Bailey admitted that he knew prior to March 22 that DiCarlo had in fact filed an EEO complaint.” This assertion is not supported by the record. 1 We know that Bailey learned of the complaint at a meeting with Mr. Zernechel and Mr. Andreatti. J.A. at 206. Although we are not provided with the specific date of that meeting, Bailey stated that “[tjhe only E.E.O. activity that I knew of was with Mr. Stoltz. And that was after I had already done the paperwork for the removal.” J.A. at 216. Having carefully considered the chronology of the events, I cannot come to the conclusion that Bailey’s actions were retaliatory. As of March 9, 2000, Judson Zernechel, Rick Stoltz, and Gary Andreatti knew of the filing of the complaint. On March 22, Bailey prepared the proposal to remove Plaintiff from employment. At some point between March 22 and March 29, Bailey learned of the EEO complaint. J.A. at 217 (indicating that he wanted to wait until March 29th to allow Plaintiff to deal with his EEO complaint). On March 29, 2000, the redress hearing ended in a “no agreement” letter. On March 30, 2000, Bailey sent the letter, dated March 29, 2000, to Plaintiff indicating his termination. Based on this chronology, I would find that Bailey recommended that Plaintiff be terminated before he learned of the complaint. 2 In my mind, his decision to issue the formal termination letter after he learned of the complaint is legally irrelevant.
. The majority cites to a question that was asked of Bailey at his deposition: "So what you're telling me is that from March the 11th, 2000, to August the 17th, 2000, you only had a passing reference of an E.E.O. complaint being filed against the Postal Service by Henry DiCarlo?" Bailey answered “Right.” J.A. at 207. I am unable to determine the significance of the March 11th date from the excerpted deposition provided to this Court by the parties. I understand that the majority reads this exchange to mean that starting on March 11, 2000, Bailey knew of the complaint. I, however, read it to mean that at some point during the period starting on March 11, 2000, Bailey learned of the complaint. Whether the date that he learned of the complaint is before or after March 22, 2000, is therefore unclear. This reading is consistent with other portions of Bailey's testimony that I describe below.
. This conclusion is buttressed by the fact that Plaintiff insisted that the EEO complaint and the mediation were kept private (with the lone exception of Rick Stoltz). Contrary to majority's assertion, Plaintiff has failed to show any evidence that Bailey knew of any EEO complaint between March 9, 2000 and March 22, 2000.