holding that the plaintiff, “the only black employee in her work area,” was able to “create[] an inference sufficient to survive summary judgment[] that race was a motivating reason behind [the defendant’s] behavior” based upon allegations that the plaintiff was “disciplined . . . for things for which [the defendant] did not discipline her [white] co-workers.”
How later courts described this case
- holding that the plaintiff, “the only black employee in her work area,” was able to “create[] an inference sufficient to survive summary judgment[] that race was a motivating reason behind [the defendant’s] behavior” based upon allegations that the plaintiff was “disciplined . . . for things for which [the defendant] did not discipline her [white] co-workers.”
- holding that fifteen specific instances of racially motivated ridicule, comments, and employment actions, including intentionally placing the plaintiff in a heavy-lifting position she was unqualified to do, which resulted in a serious groin injury that rendered the plaintiff unable to work for six months, did not establish a hostile work environment claim
- holding that fifteen specific incidents of Caucasian employer disciplining African American employee harsher than similarly situated Caucasian employees spanning a two-year period were mere offensive utterances and not actionable under Title VII
- holding that employer’s refusal to remove the plaintiff from an unfavorable post was “more akin to a discrete act, which is decidedly not actionable as a hostile-work- environment claim”
Written by the judges who cited it.
The opinion
ALICE M. BATCHELDER,
concurring in part and dissenting in part.
Because I would affirm the district court on all counts, I concur in those portions of the opinion affirming the district court and dissent from those portions reversing. I find the majority’s approach unjustified and the precedent worrisome. The majority reverses the established burdens of proof, presuming here that the plaintiffs’ allegations are valid and faulting the defendant for failing to produce evidence to disprove those allegations. This departs from established law and creates precedent that effectively prejudges employers as having acted with discriminatory intent until they prove that they have not.
In resolving a motion for summary judgment, the non-moving party “is to be believed, and all justifiable inferences are to be drawn in his [or her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). The plaintiffs' — non-moving parties to the summary judgment motion — provide ample evidence of their perceived conditions at UPS and them experiences there. To be sure, these plaintiffs were miserable. But, even drawing all reasonable inferences in their favor, this evidence of their personal misery is not enough to create a triable issue of race discrimination, hostile work environment, or retaliation. The district court was thorough and articulate in its reasoning, its explanation of the proffered evidence, and its application of the law. Based on my review of the record and the district court’s opinions, I agree that the plaintiffs' cannot meet their burden of proof. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993) (“It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” (quotation marks omitted)).
The majority holds that the district court erred by granting summary judgment to UPS “with respect to Moss’s disparate-treatment claim based on the Mid-dleburg Heights position.” Maj. Op. § II.B.2.b.ii, at p. 706. But, when the district court entered its June 2005 summary judgment decision, it did not have evidence before it of two separate customer-counter-clerk positions; instead, it had Ms. Moss’s claim based on a single position (which the majority has since labeled the “Akron” position), which was filled by an employee with more seniority. The district court did not consider two, separate positions until Ms. Moss moved for reconsideration on the basis of “newly discovered evidence” 1 — i.e., that Margaret Ruddy, a white employee from the Middle-burg Heights facility, was given a position desired by Ms. Moss. Upon reconsideration, the district court found, based on a declaration by UPS Human Resources Manager Mike Mick, that one position was reserved for a displaced Akron employee (Teamsters Local 348) and the other for a displaced Middleburg Heights employee *720 (Local 407), and the plaintiff, Ms. Moss, offered no evidence to the contrary.
The majority discards Mick’s declaration as inapposite and reverses the district court because “nothing in the record [] establishes that the Middleburg Heights position was reserved for an employee from the Middleburg Heights facility,” Maj. Op. § II.B.2.b.i, at p. 705. But this is inapposite — under the traditional burdens of proof, it was the plaintiff, Ms. Moss, who was obligated to produce evidence that she was eligible for this second position and that she was similarly situated to Ms. Ruddy. UPS could dispute her eligibility (as it did) but UPS was not obligated to disprove it. UPS is the defendant. The majority states that the district court “provided no citation to the record in support of its factual findings” that Ms. Moss and Ms. Ruddy were not similarly situated, but the majority has this backwards. The district court, following well-settled law, concluded that, because she had no evidence to support her contention, Ms. Moss could not prove that she was qualified (element three) or that she was similarly situated (element four), and therefore, could not establish a prima facie case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) (“the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case”).
The majority also concludes that the district court erred by granting summary judgment to UPS on Mr. Clay’s disparate-treatment claim that UPS had failed to provide him with the “triples” training he desired, and Mr. Clay’s retaliation claim that UPS fired him in retaliation for his filing discrimination charges with the OCRC and EEOC. I disagree with both of these conclusions.
On the disparate-treatment claim, the majority objects to the district court’s determination that, because UPS did eventually provide him with triples training, Mr. Clay failed to show an adverse employment action. In reaching its own conclusion, the majority holds that an adverse employment action results from UPS’s failure to train Mr. Clay immediately (or else compensate him for the delay) because such training would lead to an increase in his pay. See Maj. Op. § II.C.2.a.i, at p. 710. I find this new definition of “adverse employment action” incredibly broad — indeed, almost limitless — and cannot agree that a mere delay in providing the desired training is a “materially adverse change in the terms or conditions of employment.” Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir.2007) (quoting Allen v. Mich. Dep’t of Corr., 165 F.3d 405, 410 (6th Cir.1999)). Therefore, I cannot agree that this constitutes an adverse employment action — especially when the labor relationship is governed by a collective bargaining agreement — or that, whenever an employer decides to delay training, the employer must compensate the employee as though the training had been offered and completed.
On the retaliation claim, the majority finds fault with the district court’s application of the “honest-belief rule” and proclaims that “we use a version of the honest-belief rule different from that of the Seventh Circuit.” See Maj. Op. § II.C.3, at p. 713 (citing Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.2006) (citing Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998))). But the majority’s “honest-belief rule” is not an honest-belief rule at all; it is a shifting of the burden of proof to the defendant to disprove discriminatory intent. According to the majority, the defendant must produce sufficient evidence to “demonstrat[e] that the defen *721 dant’s actions ... were not taken with discriminatory intent” and “to show that its intent was pure.” Maj. Op. § II.C.3, at pp. 714-15.
UPS produced evidence that Mr. Clay was fired because he failed to report to work when called and that the first of several calls was placed on Friday, September 21, 2001. Mr. Clay did not report when called; in fact, he admitted that he did not check his messages until Wednesday, September 26, 2001, the day he was terminated. According to this evidence, Mr. Clay was absent from work for three days (Monday, Tuesday, and Wednesday) and this absence was the proffered basis for his termination. The majority, citing conflicting evidence, explains that the doctor did not approve Mr. Clay to return to work until Monday, September 24, 2001, so he actually missed only two days of work and UPS’s purported basis for termination was not “anchored in the facts.” From this, the majority concludes that UPS’s nondiscriminatory reason for terminating Mr. Clay was pretextual. More to the point, by finding UPS’s evidence (excerpts from the Friday, September 21 “feeder log” documenting the first call to Mr. Clay on that day) not sufficiently persuasive, the majority concludes that UPS “does not qualify for protection under the honest-belief rule.”
UPS pointed to evidence (i.e., the feeder logs) demonstrating its honest, albeit apparently mistaken belief, that Mr. Clay had missed three consecutive days of work. This is enough to show an honest belief. The burden remained with Mr. Clay to produce some evidence that this mistaken belief was not honestly held, and indeed, this was the approach taken by the district court. The majority, however, demands that UPS “demonstrare] that the [its] actions ... were not taken with discriminatory intent” and “show that its intent was pure.” Maj. Op. § II.C.3, at p. -. Under the majority’s construct, the honest-belief rule is not an additional hurdle for the plaintiff to overcome in proving discriminatory motive, it is an affirmative defense on which the defendant must produce evidence sufficient to convince the trier of fact. Under this construct, summary judgment can never be available, as both sides are now required to produce evidence that will persuade the trier of fact. I do not agree that this circuit has departed from the ordinary rule quite so fax, but if I am incorrect and Wright and Smith actually shift the burden of proof to the defendant, as the majority contends, then this Court should revisit those holdings and reconsider that proposition.
Finally, the majority concludes that the district court erred by granting summary judgment to UPS on Mr. Miller’s disparate-treatment claim, in which Mr. Miller alleges that his 26 absences between September 27 and November 11 are an insufficient nondiscriminatory reason for his firing. Maj. Op. § II.D.2, at pp. 716-17. The majority contends that this is pretex-tual because, four years earlier, UPS had reinstated an employee with 70 absences. The district court found' — and I agree— that this other employee was not similarly situated, and 26 absences in under two months is á sufficient non-diseriminatory reason to fire an employee. On this issue, the lengths to which the majority goes to find in favor of Mr. Miller speak for themselves and need no further comment.
For all of the foregoing reasons, I respectfully dissent from those portions of the majority opinion that reverse the district court. I would affirm the district court in its entirety.
. Although the district court accepted Ms. Moss’s proffer of “new evidence,” it is questionable whether this evidence — that there was a second customer-counter-clerk position allegedly desired by Ms. Moss or that Margaret Ruddy was the person who obtained it— was really "newly discovered evidence” for purposes of Fed.R.Civ.P. 60(b)(2), i.e., that could not have been timely discovered with "due diligence” and for which Ms. Moss could reasonably be considered "excusably ignorant.” See Davis v. Jellico Comm. Hosp., Inc., 912 F.2d 129, 136 (6th Cir.1990).