Thomas O. CANITIA, Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee
903 F.2d 1064
6th Cir.
1990
Check Treatment

*1 13, 1989. Argued Nov. NELSON, Before WELLFORD and SUHRHEINRICH,* Judges; and Circuit May Decided Judge. District Rehearing Rehearing En Banc July Denied PER CURIAM. opinion January

The filed this cause reported at 894 F.2d reconsideration re- withdrawn Sys- sponse to defendant Yellow tem, (YFS’) rehearing. petition Inc.’s carefully have reviewed our decision We light petition rehearing, the re- sponse plaintiff, and the record in this cause. This careful review of the record us that we relied on establishes * Suhrheinrich, Michigan, sitting by designation. F. United Richard Honorable Judge Eastern District of States District for the *2 Canitia swore ended when information, may job performance factual erroneous meeting. out of at them walked lan- unnecessarily confusing used have legal applicable describing the in guage month, management YFS Later that Title case. in a YII burdens surveillance, using under placed Canitia an out- as well as management members sued his former Canitia Plaintiff Thomas firm, to discover instances “spotting” dis- side alleging retaliatory employer, assertedly “unrea- plaintiff was in which resulting charge from This oc- abusing” company sonably time. a worker success- case of fellow in the “overtime” and sex discrimina- Canitia was on for race curred while fully sued YFS discovery, to seek to Manager district Marino decided Following status. tion. consequence. for YFS’ motion as a granted defendant terminate Canitia court appealed. judgment, and Canitia summary proceedings, Cani- Following grievance driver for YFS a truck to a sus- had been was converted Canitia tia’s termination his termi- the time of Upon his pay for some or pension without benefits. January December, In of work, nation Canitia once return to was for as a witness appeared manage- year, by Canitia that YFS placed surveillance under Yel- entitled Few v. in a plaintiff case in alle- ment, investigation resulted whose Inc., No. C85-2478A System, engaging in low was still Canitia gations that Few favor of (N.D.Ohio). A decision delay and misconduct type of same 1986 WL April forth on driver-delivery came his carrying out of 26,1986, Canitia was duties. On upheld discharge this discharged, and his giving between In the months grievance committee. by the delivery of testimony and the disciplinary let- Few, received Canitia dismissal, appeal, Following an initial case, in the Few Following judgment ter. its dis- remand, into this cased moved letters in two six he received There- February, 1988. covery phase suspension. to a months, subjected and was summary judgment. after, moved YFS facts substantially on these relies Plaintiff to this mo- responding After the time retali- evidence strong circumstantial an ex- Canitia moved elapsed, had tion ation. This motion respond. time to tension of court denied, district and the Canitia was al- procedures grievance The contractual judgment for defendant summary granted present to as Canitia employee such low to alter subsequent motion YFS. Canitia’s up made of committees case to a series granted judgment was this or amend un- management and equal numbers 1989, and January, court district these majority of representatives. ion opportunity to given an then Canitia may reverse any stage representatives at summary judg- YFS’ motion respond to measures directed modify disciplinary or response, the considering this ment. After If the final commit- employee. its earlier reaffirmed then (the district court process “Central tee summary judgment. grant of Committee”) issue deadlocks States is then referred discipline, the matter plaintiff court found The district arbitration. a failed to establish Furthermore, discharge. to work returning Upon could be if that even Canitia called court found suspension, Canitia August 1986 case, make out deemed representa- management meet with YFS a non-retali- come forward with YFS had Alder. Canitia Marino and Joe Nick tives termination. for the atory, legitimate basis testimony in that his maintains “in order concluded court The district management, an up by brought case fact material issue of to raise a and Adler Marino allegation which both showing produce must evidence rather, their claim, efforts deny. They pretext. mere given that the unsatisfactory on-the- to discuss Canitia’s legitimate no such evidence YFS had established a and non- There is discriminatory reason for the termination: Court.” job performance, deficient retaliatory- In order to establish a case of string as evidenced continued (1) discharge, plaintiff prove must he warnings, provides written *3 engaged activity protected by in an Title hearing. reason for the first This con- VII; (2) protected of his this exercise supported by clusion is the fact that the defendant; (3) rights known to civil was upheld State Grievance Committee the employ- defendant thereafter took an suspension.... Affirmance the later [of (4) plaintiff; action adverse to the ment discharge] by the State Grievance Com- that there was a causal connection between previous perform- mittee work protected activity and the em- adverse problems plaintiff ance demonstrate Gould, v. ployment action. 808 Wrenn discharge was for a v. Fred (6th Cir.1987); Cohen F.2d 493 reason. Inc., Meyer, 686 F.2d 793 “begins plain- A Title VII case with the plaintiff If and when has established a duty prima tiffs to establish a facie case case, prima production facie the burden of by showing give such facts as rise to an employer of evidence shifts to the to “artic inference of unlawful discrimination. That legitimate, nondiscriminatory ulate some Wrenn, easily met.” F.2d burden 808 Douglas reason” for its actions. McDonnell timing at 500. We must examine the Green, orp. 792, 802, C v. 411 U.S. 93 events, participation co-employ- in 1817, 1824, S.Ct. claim, ee discrimination Few's and Canitia’s Wrenn, plaintiff, 501. The 808 F.2d at frequent disciplinary problems to deter- persuasion who bears the burden of mine he has established a whether throughout process, the entire then must through the use circumstan- proffered demonstrate “that tial evidence or otherwise. employ not the true was reason for appears It that Canitia received at least Dept. ment decision.” Texas Communi warning in twelve letters Burdine, 248, 256, ty Affairs prior (in testimony early his to Few 1986 (1981). 101 L.Ed.2d S.Ct. 207 warning addition to letters that were sub- The district court found that Canitia had sequently warnings) retracted and oral established first three elements of his respect city pick-up as a with to his duties claim, but had failed to establish the causal delivery Plaintiff one driver. testimony connection his between number of witnesses who testified for Few and his termination: YFS, against in his claim and there is no showing is no direct evidence [TJhere any pattern record of of retaliation against plaintiff that defendant’s actions generally by During such witnesses YFS. were motivated a desire to retaliate preceding July, the nine months it given plaintiff appears warning that Canitia received six any civil suit. Nor are there inferences letters, including concerning his al- to such a find- be drawn which leged productivity, low which YFS charac- ing. plaintiff Simply, has failed to estab- company terized as “abuse of time.” lish that mo- defendant had a one-day disciplinary suspension given Thus, tive. there is no issue of July hearing him in a 1986 terminal any material fact and ... defendant plaintiff grieved. suspension which entitled to as a matter of law. ultimately upheld attempted and YFS Furthermore, plaintiff concerning produc- the court found even to counsel case, plaintiff if tivity problem. had made out a 9). warnings pellant’s p. 1. Canitia there were six concedes that brief Both 1986 during approximate period hearings (prior an ten-week in 1986 to December action in con- prior July. troversy) charge to Canitia also concedes that he was occurred before Canitia filed a EEOC, July preceded warned in next 1986 that the such of- of retaliation with the which (See bring ap- discharge question. fense would about termination. as described to the facts In contrast surveillance after in 1986 later Still 197, a F.2d at opinion, 894 previous our job, dis- activities reveals of the record examination careful Canitia, again followed charged warning letters received seven that Canitia challenging the action process at least three plus his file to discharge reduced retaliatory. The in 1986 occurred after so that what After pay. without suspension ten-day not case does testimony in the Few 1986, YFS work, in late returning disciplinary ac surge of a sudden reflect whether to determine surveilled here the situation tions. We find acceptable had reached productivity City Cooper v. the facts in comparable to delay oc- longer Allegedly, an level. (6th Olmsted, Cir. 795 F.2d 1265 North of 1986). delivery making a while Canitia was curred *4 giv- again Notice Industries. at Euclid plaintiff claimed a Title VII Cooper, In hearing for a Canitia, appeared en for discharged in retaliation that she once and was civil a state complaint before bringing a again filed a Canitia discharged YFS. plaintiff had been rights commission. discharge was the time grievance. times six for rules violations cited proce- grievance the the end of at sustained period preceding state seven-month dure. in the four nine times complaint, and Marino alluded Mr. Assuming that The court complaint. months case, de testimony in the Few of disparity in the amount a “While found: light denial, enough, in is this spite his certainly suffi- may be disciplinary action taken actions history cases appropriate cient genuine is Canitia, a constitute retaliation, such a is not this inference regard to with fact of material sue at 795 F.2d case.” in his states Canitia charge of retaliation? not exam- Here, Cooper, we are as in cited testimony was his own that brief employee a trouble-free ining the case of Sys Yellow in Few v. court this during the months 1988), a (6th basis 123 Cir. as tem, F.2d 845 to a alleges gave rise he which incident Few, a black for affirming judgment a and sud- subsequent retaliatory motive discrimina claimed employee who female employer. In by the warnings job den is name discharge. Canitia’s tion her instituted disciplines at issue case 124, citing from a mentioned, at 845 F.2d to some were vindicated against Canitia as findings court district portion of re- procedure full degree after com in 1983 employees who of the YFS view. certain discipline on “unfair plained about a established Canitia assuming that Even is that argument His other individuals.” treatment, retaliatory production standards specific no there are its to meet ample evidence supply did YFS subjective establishing a burden respect. discipline this basis fur of Canitia. treatment its direct, then, produce had been burden, Canitia “to remains The fact ther recently and twice evidence” previously or circumstantial indirect terminated retaliatory mo ac- YFS the result of each (despite grieving disciplined treatment In National v. Northwestern Gagne to those involved tion) similar tive. actions (6th 309, Cir. 314 Co., F.2d strong 881 This is discharge at surance issue. 1989). considering take into account factor to may making merely out Summary judgment clear that here. It is issues automatically does not VII cases case in Title appropriate summary judg- dispute. from a appellant may be in save facts where certain Indeed, inference Co., F.2d 264 ment motion. 816 Electric v. General Shah prima facie by the created Dean, F.2d discrimination 821 Cir.1987); v. Boddy (6th employer’s rea- once the dispelled case Cir.1987). (6th 346 1068 stated, discharged any until and unless the latter Canitia would have

son is been pretext. way. Healthy City to be a is shown Mount School District 429 Doyle, Board Education v. U.S. (internal quotation at 314 Gagne, 881 F.2d 274, 568, (1977); 97 S.Ct. 50 L.Ed.2d 471 omitted). marks and citations 56, Fed.R.Civ.P.; Rule Price Water cf. type in this of case must U.S.-, Hopkins, house v. 490 109 S.Ct. complained the decision establish that 1775, (1989). Although I would not have about been thought initially the state of the protected for” the status of the made “but summary judg record was such as to bar Fenik, plaintiff. 860 F.2d Gutzwiller ment on whether the was a 1317, (6th Cir.1988); 1325 Batts v. NLT discharge, substantial factor in the 331, Corp., 844 F.2d 335 analysis opinion set forth the instant defendant, involving also a case See persuades trial, me that if the case went to Inc., Freight Systems, Polk v. Yellow 801 way carry there is no Mr. Canitia could (6th Cir.1986); F.2d 199 Goostree v. proof burden of on that issue. Given the Tennessee, (6th 796 F.2d State of being demands now made on the time of Cir.1986) denied, cert. courts, most district it seems to me that a 94 L.Ed.2d S.Ct. and Blal *5 lopsided in a full-scale trial case as as this Trades, Inc., ock v. Metals 775 F.2d 703 probably one would a misallocation of (6th Cir.1985). In of the entire view record judicial resources. at the time the district court made its deci summary judgment motion, sion on the we

can find no error the district court’s

conclusion that not met Canitia has evidence, any

standard. The reason therefrom, inference to re

able be drawn insufficiently upon pro

lied

bative to overcome defendant’s substantial proof summary judgment. America, UNITED STATES of Liberty Lobby, Anderson v. Plaintiff-Appellant, 106 S.Ct. Co., Street v. J.C. & 886 F.2d Bradford Gary BARANEK, Defendant-Appellee. previ- close case and we have No. 88-2088. ously given plaintiff a substantial benefit Appeals, United States Court of initially directing considerable doubt Sixth Circuit. Upon remand for further consideration. further reflection in of defendant’s view Argued Oct. thoughtful petition rehearing, we now May Decided AFFIRM the action of the district court. NELSON, Judge,

DAVID A. Circuit

concurring.

I separately my write to note under-

standing that if Mr. Canitia had been able genuine

to show that there was a issue as

to whether his in the Few case “motivating”

was a “substantial” or factor discharge, entry summary

judgment against him in- would have been

appropriate unless the record also showed

that there to the was no issue as

fact, employer, asserted that Mr.