Susan P. Asmo v. Keane, Inc.

GRIFFIN, Circuit Judge,

dissenting.

I respectfully dissent. In this reduction-in-force case, Asmo has not satisfied the fourth element of the prima facie case of pregnancy discrimination, i.e., the Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990), additional evidence requirement and a causal nexus between her termination and Keane’s acquisition of knowledge of her pregnancy. Because plaintiff did not make out a prima facie case, there was no need for Keane to articulate lawful reasons for its adverse action. Accordingly, we should not address Keane’s stated reasons or Asmo’s attempts to portray those reasons as pretexts for unlawful pregnancy discrimination.

The majority states that “the district court erred in holding that Asmo needed to present evidence beyond a nexus between her pregnancy and the adverse employment decision to satisfy the Barnes additional-evidence requirement....” But, the majority still effectively proceeds on the erroneous premise that temporal proximity alone can establish a causal connection between the protected activity and the unlawful employment action in the retaliation context. As authority for this proposition, the majority cites DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir.2004) and Nguyen v. City of Cleveland, 229 F.3d 559 (6th Cir.2000). However, neither DiCarlo nor *599 Nguyen stands for such a broad and unqualified proposition. And neither DiCar-lo nor Nguyen marshaled any binding precedent in support of such a holding.

The DiCarlo panel stated only 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.” DiCarlo, 358 F.3d at 421 . Such a statement is not a holding that temporal proximity alone can establish a causal nexus. Moreover, in the instant case, Asmo’s termination was not “acutely near in time” to Keane’s learning of her pregnancy. Thus, even if we read DiCarlo as the majority does, DiCarlo would not permit temporal proximity alone to establish a causal nexus here.

In any event, DiCarlo cites no binding precedent for the proposition that temporal proximity alone can establish a causal nexus in a discrimination case. DiCarlo cites Nguyen , which does not and cannot stand for such a rule. DiCarlo also cites Brown v. ASD Computing Ctr., 519 F.Supp. 1096, 1116 (S.D.Ohio 1981) for the proposition that “where there is no direct proof of a retaliatory motive, retaliation may be imputed if the timing of the retaliatory act is such as to allow an inference of retaliation to arise.” DiCarlo correctly notes that the district court decision in Brown was affirmed by this court. But DiCarlo inaccurately cites our affirmance in a format that fails to show that the affirmance was unpublished. See Brown v. Mark, 709 F.2d 1499 (6th Cir. Mar.3, 1983) (listed only as a one-line entry reading “Affirmed” in an Unreported Decision section of that volume of the Federal Reporter 2d). Therefore, Brown v. ASD does not bind us any more than any other district court decision, which is not at all. See U.S. v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416 , 423 n. 10 (6th Cir.2006).

DiCarlo also states “[vjarious of our sister Circuits have also accepted this concept,” 358 F.3d at 421 , but “this court is of course not bound by the holdings of our sister circuits.” U.S. v. Carpenter, 360 F.3d 591, 600 (6th Cir.) (en banc) (citing Nixon v. Kent Cty., 76 F.3d 1381 , 1388 (6th Cir.1996) (en banc)), cert. denied, 543 U.S. 851 (2004). 1

With regard to Nguyen , that panel stated only that “while there may be circumstances where evidence of temporal proximity alone would be sufficient to support [an inference of a causal link], we do not hesitate to say that they have not been presented in this case.” Nguyen, 229 F.3d at 567 . Thus, Nguyen did not hold that temporal proximity alone can establish a causal nexus; it took care to qualify that “there may be circumstances” where such evidence would suffice. Nguyen effectively stated that, whether or not temporal proximity alone can ever establish a causal nexus under some circumstances, it was immaterial because Nguyen did not present such circumstances.

Therefore, Nguyen’s statement about “temporal proximity alone” was obiter dictum, ie., “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential....” Black’s *600 Law Dictionary 1102 (8th ed.2004); see also U.S. v. Yoon, 398 F.3d 802, 806 (6th Cir.2005); Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006). A panel’s dicta, of course, does not bind subsequent panels. See Williams v. Anderson, 460 F.3d 789, 796 (6th Cir.2006) (noting that “dicta does not bind this Court”); ACLU of Ohio v. Taft, 385 F.3d 641 , 649 n. 4 (6th Cir.2004) (“This statement is dicta and the decision is an advisory opinion, not binding on this court. Nor are we persuaded by similar non-binding dicta in.... ”).

Most important, the Nguyen decision relied upon by the majority also states that temporal proximity alone cannot suffice to establish a causal nexus:

In both Harrison [v. Metro. Gov’t of Nashville, 80 F.3d 1107 (6th Cir.1996) ] and Moore [v. KUKA Welding Sys., 171 F.3d 1073 , 1080 (6th Cir.1999)], we found a causal connection when the temporal proximity was considered along with other evidence of retaliatory conduct. We have also spoken on the question of whether temporal proximity between the protected activity and the adverse action, in and of itself, is sufficient to establish a causal connection. See Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir.1986). In Cooper, we rejected the proposition that temporal proximity is enough ....

Nguyen, 229 F.3d at 566 (emphasis added).

Moreover, to the extent that DiCarlo or Nguyen could be read to state a holding that temporal proximity alone can be enough to establish a causal nexus, they conflict with, and must yield to, earlier published decisions. “ ‘The prior decision [of a Sixth Circuit panel] remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.’” Yoon, 398 F.3d at 806 (quoting Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir.2001)).

As a recent panel correctly stated, “temporal proximity itself is insufficient to find a causal connection.... ” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th Cir.2006) (citations omitted). Rather, “a temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding of a causal connection.” Id. (emphasis added); see also Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir.2002) (“Temporal proximity, when coupled with other facts, may be sufficient in certain cases to establish the causal-connection prong in a Title VII case.”) (emphasis added). As authority for these propositions, Randolph cited Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001) and Nguyen itself, 229 F.3d at 566-67 , both of which pre-date DiCarlo (2004). “When a later decision from this court conflicts with its prior decisions, the earlier cases control.” Sowards v. Loudon Cty., Tenn., 203 F.3d 426 , 431 n. 1 (6th Cir.2000), quoted by Slaughter v. Parker, 450 F.3d 224, 252 (6th Cir.2006) (Cole, J., dissenting).

In short, our earlier precedents require us to hold that temporal proximity alone cannot establish the requisite causal nexus between the employee’s protected activity or status and the adverse action. See also Balmer v. HCA, Inc., 423 F.3d 606, 610 (6th Cir.2005) (“[T]he mere fact that an adverse employment decision occurs after a charge of discrimination is not, standing alone, sufficient to support a finding that the adverse employment decision was in retaliation [for] the discrimination claim.”); Johnson v. Univ. of Cincinnati 215 F.3d 561, 582 (6th Cir.2000) (“[T]emporal proximity alone does not support an inference of retaliatory discrimination in the absence of other evidence.... ”). Absent some other persuasive evidence of a causal nex *601 us between Asmo’s pregnancy and her termination, then, we may not consider whether the two events were “close enough” in time for the temporal proximity alone to support a finding of causal nexus. Asmo failed to satisfy the fourth element of a prima facie case of pregnancy discrimination, and summary judgment for Keane was proper.

The inquiry should end there, with no discussion of Keane’s stated lawful reasons or Asmo’s attempts to portray those reasons as pretextual. See Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir.2003) (“He therefore failed to make his prima facie case [of age discrimination] and we need not address the legitimate-reason and pretext parts of the McDonnell analysis ....”), cert. denied, 541 U.S. 1010 , 124 S.Ct. 2069 , 158 L.Ed.2d 620 (2004).

Finally, even if our precedents permitted a plaintiff to satisfy the causal-nexus element with evidence of temporal proximity alone in a pregnancy-discrimination case, Asmo’s claim still fails. I note first that the record does not establish with certainty when Keane learned that Asmo was pregnant. As the majority opinion notes, Asmo informed the Selling, General, and Administrative (SG&A) team of her pregnancy “sometime in October 2001,” and Director of Corporate Recruiting Scott Santoro informed her of her termination on December 4, 2001. So the lapse between Keane acquiring knowledge and Asmo’s termination could be as short as thirty-five days (October 31-December 4, 2001) or as long as sixty-four days (October 1-December 4, 2001).

In my view, the time period between Keane learning that Asmo was pregnant and its terminating her employment is insufficient, by itself, to satisfy the fourth element of the prima facie case. The majority cites no binding precedent holding that such a time lapse, without more, is sufficient to establish the additional-evidence requirement of Barnes and the requisite causal nexus between an employer learning of pregnancy and the adverse action. The majority cites one published decision, DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir.2004), but that stands only for the proposition that on the facts of that case, a substantially shorter time lapse — • twenty-one days — was sufficient to establish a causal nexus. Cf. Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir.1999) (“We agree with the magistrate judge that ‘[b]e-cause the disciplinary actions occurred two to five months after Hafford filed charges, and are fairly even spread over a period of time, the inference of a causal connection based on temporal proximity alone is tenuous.’ Absent additional evidence, this loose temporal proximity is insufficient to create a triable issue.”) (emphasis added).

In the instant reduction-in-force case, I would likewise hold that, absent additional evidence, the loose temporal proximity, alone, is insufficient evidence to withstand defendant’s motion for summary judgment.

For these reasons, I respectfully dissent and would affirm.

. See also DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 923 (6th Cir.2006) ("The cases are ... not binding on this court because they are from other circuits."); Cross Mountain Coal, Inc. v. Ward, 93 F.3d 211, 217 (6th Cir.1996) ("[E]ven though the decisions of other circuits are entitled to our respect, they are not binding upon us.”) (citing In re Tenn. Cent. Ry. Co., 498 F.2d 904, 905 (6th Cir.1974)).