*2 CLAY, Circuit Judge.
Plаintiff, Kathy (“Cantrell”), from appeals grant the district of court’s Defendant, judgment summary Nissan America, (“Nissan”), North Inc. on Can- 1) claims that trell’s Nissan discriminated by against failing reasonably accom- disability modate her of violation Americans Disabilities Act of 2) seq., et § U.S.C. ter- minated retaliation for charge disability of an dis- Equal crimination with the Employment (“EEOC”). Opportunity Commission For follow, the reasons that we AFFIRM grant summary court’s judg- district ment to Nissan Cantrell’s discrimina- claim, but tion REVERSE and REMAND her retaliation claim for trial. BACKGROUND I. Facts employed Cantrell was as a at technician operat- manufacturing plant an automobile 18,1999, began a leave On June Smyrna, Tennessee from ed knee a non-work related absence due December 1992 until March until De- on leave injury. She remained ten-year in her career Nis- trends Two returned, 10,1999. When Cantrell cember here: her particularly san relevant are *3 on her placed limitations physician her problems medical and Nissan’s recurrent crouch, and step up to and ability squat, them; comprehensive accommodation job rotation identified down. Nissan problems, repeated disciplinary and her those group her satisfied work within years until fi- which Nissan tolerated for 23, 2001, Cantrell restrictions. In October terminating only nally her that additional restrictions advised Nissan after an EEOC com- two months she filed imposed. knee had regarding her been plaint against company. only one that there was Nissan contends could work where Cantrell group work medical and 1. Cantrell’s dis- these restrictions. Cantrell within attempts Nissan’s to accommodate this, agrees she could putes but group them in identified work it one of the individuals because included family physician diag- In Cantrell’s from whom was restricted with Cantrell depression being nosed her with and sub- a leave working. put was therefore She ject attacks, panic prescribed and medi- to February 2002, In Cantrell’s absence. treat problems. cation to these Cantrell restrictions, which doctor new submitted has taken medication and received counsel- could be accommodated determined that time. In ing since Cantrell was assignment, she in current and depression as a hospitalized result of her returned to work. approximately
for two weeks. She has not turn, April In it was Cantrell’s hospitalized depression been for since. seniority system, under to rotate Nissan’s crowds, avoids Cantrell but she able to “Sealer, System Every 2” into the unit. drive, and regularly, attend church take technician in group previ- other her had household as cooking, care of chores such Previously, ously into Sealer. rotated cleaning, laundry. Cantrell also suf- into Cantrell had avoided rotations Sealer sleep fers from a disorder which causes with concerning because of the restrictions sleep her to either too much or too little. re- whom she could work. Co-workers permitted In she was a one-month garded as unfair because Sealer this job. in participate perceived leave of absence order to be a difficult On June to managers advised study. company Cantrell sleep Dr. had her to approved Williams explained in greater As will be detail Sealer, willing to work she was below, interpersonal many Cantrell had try to medical work Sealer. Nissan co-workers, her problems with some of staff evaluated her restrictions and her troubling which became so to her that in Sealer, willingness try to to work in her personal psychologist late both tempo- agreed permit transfer on imposed and а Nissan doctor restrictions rary working then began basis. Cantrell working her which barred from with sever- a more provide Sealer. In an effort al individuals. Nissan accommodated workstation, man- relaxed and familiar by assigning restrictions these (“Travis”), ager, Andy arranged Travis only groups to work where she would not another to work in across technician Sealer required be come into contact with the line Travis escorted from Cantrell. assigned job, individuals. Cantrell to her and watched those job perforin employees during for several from minutes. other course of He her that assured he would check on her such employment. problem The first periodically, okay if she asked appears to have arisen thirteen months leaving, before she responded Nissan, began after working she However, affirmatively. shortly after Tra- cited for inappropriate workplace left, experience vis began an- making physical behavior for unwelcome other attack result being as a contact two separate coworker on proximity group, close fo her former work occasions. although she did not see of the em- Fеbruary 1995, ployees from had Angela whom she been restrict- co-worker *4 incident, Following ed. this Nissan made Link complained plant’s to the paint Hu- attempt no further to have Cantrell work man Department Resources that Cantrell Sealer, System in 2. was engaging inappropriate physical intimidating contact and her coworkers for
Following a disciplinary problem, Can- period an trell extended of time. The group was transferred to a new work next 31, on July month, 2002. group, Cantrell’s new manager, Cantrell’s then-area Rus- Sealer, 1, System any did not include Rigsby, reported sell that Cantrеll had the technicians from whom she re- was him confided to that to planned she mur- stricted, entirely and was in an different someone, der and had told him “I’m so However, location. report Cantrell did not mad I kill I could someone. could under- assignment, to her new but instead went place stand how someone could come into a on another leave of absence. Cantrell like and kill and people,” this said “I’m begun experience claimed she had going Angela to beat the shit out of [Link] panic another attack and could not work baby after her is born.” Nissan then because two from individuals whom she placed on leave until Cantrell medical she working was restricted plant were could demonstrate that was not she where her assignment new was located. threat. Cantrell returned to on work November Nissan authorized Cantrell return to 13, 18, 2002, 2002. On November Cantrell work August was on June 1995. In participate asked she would and Nis- program, san’s vehicle evaluation September where was Cantrell counseled employees look over as if they cars were at by several Nissan managers about her dealership, by over the checking finish accusations, “finger pointing, and intimi- car, radio, lights, and other July, Taylor, dation.” The next Ron who functions, and test-driving then the car on time, was area at manager a track. Cantrell agreed, but suffered an- reported making was sexual com- viewing other attack after the video phone ments him at work and in calls to employees participating shown to in the his home. program. Cantrell was referred to Nis- Link, In Angela October Patrick clinic then san’s medical and sent home. husband, complained Link’s to Nissan that She was released to return to work on threatening Cantrell him and was others November 2002. work, him at and had confronted problems disciplinary 2. Cantrell’s 25, 1996, On parking lot. October Jim handling of them Nissan’s (“Bowles”), manager Bowles for section paint plant, recommended Can- Cantrell’s behavior caused numerous many complaints reassigned group resulted in trell be to another work regarding her a written reminder give Management “fresh start.” received her a The written re- agreed “inappropriate moved her to a new work behavior.” normally transfer her that she would group. Nissan does minder also informed start,” group them to a effec- employee givе “a fresh transferred new work be would company immediately, any believed this move but the was warned tive Cantrell, development a positive be at time inappropriate further behavior group her new especially as work action result further corrective could regarded assignment a more employment. as desirable of her including termination than her old one. experience at testified in his Bowles Nissan, “fresh start” was such second In coworker Garri- November Sam above, As Cantrell noted unprecedented. intimidated, ha- son that Cantrell reportеd assignment, to her new but report did not rassed, January and stared him. on leave of absence. instead went another Jimmy reported coworker Waisanen two of harassing incidents behavior leave, charge filed a While Cantrell, him one toward and another with the EEOC. That discrimination called his wife. on October charge dismissed *5 to Cantrell returned work on November 2002, 20, On involved June Cantrell was 13, Terry met with 2002. She Bowles in a a The confrontation with coworker. (“Parks”), the Sec- Operations Parks Paint day, telephoned next another coworker They her she manager. tion informed was Nissan complain to about conditions a start and that being given second fresh group and Cantrell’s work named Cantrell inappropriate further behavior would problems. of the “head leader” After incidents, result in her termination. Parks testified those an investigation into Can- impressions that his of Cantrell trell’s group (consisting work of interviews meeting were “she handled herself of each the members group) of of the pleasant a person.” During well. She was interpersonal problems. disclosed Can- back, days check in trell her first Parks would agrees that the revealed investigation regularly to make sure with Cantrell perceived some of the technicians view, things going smoothly. were In his one of the Cantrell to be causes of those to was, very pleasant, very “seemed be problems, disputes in Cantrell but that she did fact, happy working, where she was of a cause in her work really problems, adapting have well.” group. a response about question manager Parks that Her area told Cantrell they whether had ever intimi- observed doing fine. by any dation of the technicians group, work seven of interview- seventeen 25, 2002, On November the week after In response ees named Cantrell. to a upon attack suffered a Cantrell question help what “would about most training viewing the video for vehicle your a workgroup become more of program, prepared a evaluation Bowles team,” suggested “doing eight “moving” or recommending memorandum Cantrell’s something about” Cantrell. outlined Can- termination. memo 2002, July “history On involved of misconduct.” gross Cantrell was trell’s regarded driving program incident in she became inci- another Bowles in a “argumentative” long with a another co- another list of occasions yet dent as management appeared “trying worker. Nissan considered where Cantrell be Cantrell, pick jobs,” yet terminating against but decided constituted more Instead, man- July “inappropriate it. on Cantrell behavior.” Nissan termination, agement approved and at had Cantrell established a retaliation, 6, 2002, proffered case of had meeting on December legitimate non-discriminatory explanation being was informed that she was terminat- Cantrell, for its decision to terminate history gross ed because of a miscon- explanation she had not shown that to be unsuccessfully duct. appealed pretextual. through her termination peer Nissan’s re- process. view appeal Cantrell filed a notice of to this May Court on 2004. History II. Procedural DISCUSSION Cantrell filed this suit in the United States District Court for the Middle Dis- I. The district court did not err January trict of granting summary judgment Tennessee on on Can- complaint Her alleged that Nissan had trell’s discrimination claim violated the Americans With Disabilities Having reviewed the memorandum (“ADA”), § Act of 1990 42 U.S.C. et and order entered district court seq., by failing reasonably accommodate 29, 2004, April this case on we conclude disability, and that Nissan terminatеd correctly granted the district court retaliation for her summary judgment to charge disability discrimination with ADA, discrimination claim under the Equal Employment Opportunity Com- § seq., U.S.C. et Given the district (“EEOC”). mission Nissan filed an an- comprehensive explanation court’s of its 17, 2003, swer on March and motion for grant summary judgment, jurispru no *6 summary days judgment two later. On purpose by dential would be served 25, 2003, April Nissan filed an amended analysis exhaustive of that here. issue summary judgment. motion for Rather, a short discussion will suffice. stated, 18, 2003, July As the district court in order to On the district court de- establish her claim that not Nissan did summary judg- nied Nissan’s motion for reasonably alleged accommodate her dis- ment, prejudice without to refile. Nissan attacks), (depression abilities and filed a summary judg- renewed motion for 1) Cantrell needed to show that she has a ment on November 2003. Cantrell 2) disability, qualified perform she is the response filed a on December 2003. job requirements with or without reason- 28, 2004, April On the district court en- 3) accommodation, able and she was de- tered an granting order and memorandum Penny nied reasonable accommodation. summary judgment to Nissan. The dis- Service, v. 414 United Parcel 128 F.3d trict court found that while Cantrell had (6th Cir.1997). genuinе raised a issue of material fact as to whether she was disabled within the Although that it call we find is a close as ADA, meaning of the she had not met her succeeding in estab- whether Cantrell showing qualified burden of that she was lishing that she was disabled under the position. respect for her With to Can- statute, agree with the district court’s we claim, that, trell’s retaliation the district court dis- assuming conclusion she was abled, found that Cantrell could not make out a failed to show that she was prima claim because she had not qualified position for the because of her facie filing inability establishеd a causal link between the attendance and her of her claim and her termination. Further- get along EEOC with co-workers. more, reject suggestion the that Nissan The district court further found even we
105 1) in a Title engaged must show: that she reasonably accommodate Cantrell’s did 2) disability; contrary, until employ to the that her VII-proteeted activity; terminated, impressive made ef- 3) plain activity; of that er knew comply her and to forts accommodate employment an adverse experienced tiff by her imposed doctors. with restrictions 4) action; connection thаt a causal correctly granted sum- The district court activity and protected exists between mary to Nissan on Cantrell’s judgment action. Little v. employment the adverse claim. accommodation reasonable Co., 265 F.3d Exploration BP & Oil (6th Cir.2001) (citing Morris Old 363 granting II. The court erred district Court, 201 F.3d County ham Fiscal summary judgment on Cantrell’s (6th Cir.2000)). claim retaliation the district court’s agree We cannot with dispute that Cantrell en- There no summary judgment determination activity by filing in a gaged protected respect appropriate was also with to Can- claim of discrimination with EEOC on against trell’s claim thаt Nissan retaliated 5, 2002, Nissan was September aware filing, the basis of her EEOC activity, experi- of this and that Cantrell in a more engage we therefore extended action enced an adverse here. discussion of issue December she was terminated on Therefore, only dispute is whether 1. Standard of Review Cantrell has set forth case We review de novo district court’s prong retaliation to the fourth regard grant summary judgment, applying standard, requires her to estab- as the legal same standard court below. lish a causal connection between her Poe, Soc’y v. Equitable Assur. Life her termination. (6th Cir.1998). Summary F.3d judgment where appropriate plead- “the connection A causal is established ings, interrogato- answers to depositions, presentation of evidence “sufficient raise ries, file, together admissions on activity protected the inference that her *7 affidavits, any, show there is no ac likely was the reason for adverse genuine any as to material issue fact Dennison Avery Corp., tion.” v. EEOC moving party judg- that the is entitled to Cir.1997) (6th 858, (quoting 104 F.3d 861 ment as a matter of law.” Fed.R.Civ.P. Passenger Zanders v. National R.R. 56(c). must consider the factual evi- We (6th Cir.1990) 1127, Corp., 898 F.2d 1135 dence all reasonable and draw inferences (citations omitted)). “no one While factor party. in non-moving favor of the Verizon Strand, dispositive establishing a causal con North 367 F.3d Inc. v. 581 (6th Cir.2004). nection,” genuine A issue of materi- that evidence that a we have held al fact when there is sufficient evi- exists plaintiff a employer defendant treated em find dence for a trier of fact to for the non- identically ployee differently from situated Brighton High moving Skousen v. party. engage protected employees who did (6th Cir.2002). School, 520, 526 305 F.3d activity Michigan Allen v. relevant. Corrections, Dеpt. 165 F.3d 413 of Analysis (6th Cir.1999) v. (citing Transport Moon prima a. Cantrell’s facie case (6th Drivers, Inc., F.2d 230 Cir. 836 1987)). logic, we Applying similar have prima a In order to establish facie retaliation, employer an treats an implied where plaintiff case of unlawful 106
employee differently
complaint.
engagement
after she asserts her
Cantrell’s
ADA
rights under the
than before she had
activity
measured
protected
(again, as
so,
retaliatory
may
done
motive
be in
following
the time of her return to work
County
ferred. See Walborn v. Erie
Care
filing)
only
came
three weeks
(6th Cir.1998).
Facility, 150 F.3d
589
the decision to tеrminate her. Fur-
before
Finally, “[although temporal proximity
thermore,
allegedly trig-
event
support
alone does not
inference of gered the decision to fire her —her failure
retaliatory
discrimination
the absence of
successfully
participate
the vehicle
evidence,
other
closeness
time between
program
evaluation
far less serious
—was
filing
with the EEOC and the adverse
many previous disciplinary
than
of the
may
action is
relevant
fact
presented.1
employer’s
evince the
intent.” Johnson v.
differently
so
treated
Cincinnati,
University
215 F.3d
of
filing, particu-
before and after her EEOC
(6th Cir.2000).
582
larly
coupled
temporal
with the close
Nissan,
The facts of
Cantrell’s career
proximity
filing
between the EEOC
above,
years
recounted
show that for
Nis-
termination,
suffice “to raise the infer-
inability
get
san tolerated Cantrell’s
protected activity
ence that her
was the
co-workers,
along
in in-
with her
reflected
likely reason for
the adverse action.”
cidents in which she made threats and
Avery
Corp.,
Dennison
certain It after proffered legitimate, b. Nissan’s non- Cantrell’s return to work in November discriminatory firing reasons for 2002, having charge filed her EEOC two Cantrell, and evidence months earlier while on leave that Nissan pretext “history gross determined that her mis- plaintiff After a has established required conduct” her termination. Be- retaliation, case of the burden complaint cause Cantrell filed the while on “ shifts to the defendant ‘to articulate some (thus presumably making leave it difficult legitimate, nondiscriminatory for reason’ time), her at that Nissan to fire we Runyon, its v. 245 actions.” Gribcheck that the appropriate conclude measure (6th Cir.2001) (quoting F.3d temporal proximity in this case is from 13, 2002, Green, first Douglas Corp. November the date McDonnell returned to work after the EEOC 792, 802, L.Ed.2d U.S. 93 S.Ct. *8 complaint, until the date of her termination (1973)). If 668 the defendant succeeds on December so, doing plaintiff the must demonstrate jury by “that a could find a reasonable view, In our Cantrell has raised an infer- preponderance of the evidence that the may enсe that her termination have been pretextual.” of her defendant’s stated reasons are retaliatory for the argue compare Cantrell has chosen not to that 1. We are reluctant to Cantrell’s fail- because pro- a complete vehicle evaluation Nissan fired her because she suffered ure to the (and corollary argument gram, apparently to make a that which was due to the fact attack attack, debilitating panic firing impermissible a under the a such was that she suffered ADA), argues but instead that Nissan fired her to the incidents in which she threatened or However, filing. we do so in retaliation for her EEOC menaced her coworkers.
107 legiti- Gould, proffered to show that a F.2d In order (citing v. 808 Id. at 552 Wrenn (6th Cir.1987)). an ad- mate, non-discriminatory 501 reason for a pretextual, action is employment verse reached the Although the district court (1) the that must show ‘“either plaintiff conclusion held that Cantrell opposite (2) case, fact, it had a reasons no basis prima proffered had not established facie on whether went to consider actually nonetheless reasons did not proffered that the a non-dis- legitimate, had оffered Nissan (3) they discharge, that his or motivate ” criminatory reason for to ter- its decision discharge.’ to motivate were insufficient found minate The district court Cantrell. Chemicals v. Diamond Shamrock Manzer agree, al- Nissan had done so. We that Co., McNabola (quoting 1084 29 F.3d might reasons dif- though we frame those 10 F.3d Chicago Authority, Transit ferently than the district court did. Cir.1993)) (7th original). (emphasis that Can- court found that the fact district pre- prove that Cantrell cannot It is clear complete only shifts was able six trell by showing proffered text either that return to work after her on November they that had nо basis in fact or reasons panic attack suffering before discharge. to motivate were insufficient by in the ve- spurred participation her proffered instead show that the She must a program, provided legit- hicle evaluation her dis- actually reasons did not motivate imate, for ter- non-discriminatory reason words, must show charge. In other she employment. has minating prove that firing its Can- “circumstances tend to characterized reasons for broadly, explaining trell more it its brief likely than illegal motivation more record is that clear (em- “[t]he by the Id. that offered dеfendant.” merely terminated not because original). phasis complete failed to Evaluation Vehicle the same circumstances We hold Program specific after this agreeing do a connection be- which established causal task, history but because of entire protected activity and her tween Cantrell’s inability conduct inappropriate and the also serve as sufficient evi- termination jobs to or assigned do the which she was agreed perform.” Again, at 50. to meet this Def. Brief dence test.2 over, plaintiff. 2. We note that reliance evidenсe 29 F.3d on the same or was selected prima overlaps to establish a to rebut a those case and 1081. None of elements facie proffered legitimate, non-discriminatory proffered showing rea- for the a reason appears employment son for Cantrell’s at first termination was not the actual adverse action Manzer, we blush to be barred In reason. Manzer. held, contrast, claim, straightforward context of dis- a prima in retaliation show, Age crimination claim under the Discrimina- requires plaintiff case facie Act, Employment § et U.S.C. things, tion among оther that a causal connection seq., proffered in order to show that protected activity and the exists between actually adverse did not motivate an reason employment showing, Such a adverse action. action, may plaintiff "the sufficiently strong, necessarily rebuts also upon rely simply his evidence but legitimate, non-discriminatory proffered rea- must, instead, evidence introduce additional overlap the adverse be- son for action. The ... discrimination.” Id. requirement tween the causal connection However, logical- showing proffered the rule of cannot that the reason for termi- Manzer *9 implicitly ly be extended to a case. In Man- nation was not the actual reason is retaliation law, zer, recognized permits were our the elements of the case in case class, 1) 2) by type membership proven of evi- protected in both to be the same Cleveland, action, 3) plaintiff Compare Nguyen City adverse that dence. of (6th 4) Cir.2000) ("evidence position, qualified for the and 229 F.3d was protected differently person replaced, plaintiff treated outside of class that defendant patiеnce showed remarkable for Cantrell’s CONCLUSION inappropriate repeated behavior and ab- reasons, For AFFIRM foregoing we years, sences for over ten and then fired in in part and REVERSE and REMAND abruptly only following three weeks part. engaged her return to work in a after she protected activity. pre- The event which MERRITT, Judge, concurring Circuit in
cipitated firing in pales compari- Cantrell’s part part. dissenting egregious son to some of the far more previously engaged behavior that she had agree I points with the Court on all in, and for which she was not terminated. except that I do not find the Plaintiff A jury reasonably could conclude that has demonstrated that Nissan’s stated rea- complete Cantrell’s failure to the vehicle discharge for pretextual. sons were Nis- not, program evaluation was as Nissan legitimate san has come forward awith it, would have the straw that broke the non-discriminatory reason for Cantrell’s back, camel’s but rather that Nissan sim- July repri- termination. Nissan ply seized on it as the first available excuse manded Cantrell for her “inappropriate filing. to fire Cantrell after her EEOC up point, behavior” to that warned hеr therefore We must reverse the district any inappropriate further behavior could grant summary court’s judgment to Nis- employment, result termination of san on Cantrell’s retaliation claim. reassigned to a group. new Rather It is not lost might reporting on us that some view than to her assignment, new holding today our punishing as Nissan for took a leave absence. When showing too patience much with Cantrell. she to finally report post, did her new all, simply After had Nissan fired Cantrell worked there for less than two weeks be- when up she threatened beat fore the same old ensued. Nis- cowоrker, multiple or in co- san contends that this latest incident in reported workers ha- light continuing inability Cantrell was of her to do the them, rassing intimidating jobs assigned to which she was and her might alleging “history have had a hard time of gross misconduct” motivated proving wrongful. that her termination I company discharge Cantrell. simply emphasize jury agree my colleagues We would that a with that the reason proffered by free to conclude that it was the accumula- both had a basis tion justify of those and similar events that fact and was sufficient to Cantrell’s Cantrell, discharge. Majority Opinion caused Nissаn to fire and if it at -. I so, conclusion, disagree does Nissan will not be hable with the Court’s how- ever, wrongdoing. But if it was Plaintiff can demonstrate complaint of the that caused tend the existence “circumstances which her, finally patience prove illegal lose that an motivation its then law, protected likely she is under the than that De- no matter more offered objectionable prior (quoting how behavior fendant.” Id. Manzer v. Dia- Co., 29 F.3d workplace. mond Shamrock Chemicals similarly minating motivating employees from ... rele- her was the actual situated above, causation”), discharge. As noted vant and Pascual v. Anchor reason for her Products, 96-5453, Inc., every employee engaged [who Advanced No. in the same (6th 1997) ("Brown July was released from An- Brown] WL 397221 Cir. misconduct as employment”). prove could not that Anchor's reason for ter- chor's *10 (6th Cir.1994)) (emphasis original). colleagues
My simply speculate had a and suffi- legitimate while COMPANY, THE SCOTTS Cantrell, jury cient basis terminate Plaintiff-Appellant, motivated they actually find were not could Instead, they legitimate by this reason. S.A.; Logistics, Starlink AVENTIS can it is “more find that Cantrell show that Inc., Defendants-Appellees. not” that fired Cantrell likely than filing. The response No. 04-3569. find it morе jury holds that could Court Appeals, Court of United States nondiscriminatory than not that likely Sixth Circuit. merely justifying termination were reasons disguising retalia- company’s an excuse Aug. 2005. only stated for this find- tion. The reason Rehearing Aug. Denied that Nissan did terminate Can-
ing is when her was more trell earlier behavior Majority My Opinion at-.
egregious. it majority’s opinion that the makes
fear is
nearly impossible employer for an to ter- employee employee has
minate EEOC, if it is
filed a claim with even employer that the has a valid reason
clear An EEOC employee.
to terminate alone should not an insur- serve as policy against discharge
ance when the employer’s
reasons for the actions are as they
strong as are case. this say most I can here is that the facts evidentiary no more than
create a state of on this
“equilibrium” point. Cantrell likely
unable to show that “it more than proffered
not” that Nissan’s reasons are pretextual. Plaintiff has the bur-
simply
den, and she has not carried it. I would grant- District
affirm the Court’s decision summary judgment plaintiffs
ing on the claim.
retaliation