*3 SUTTON, Circuit Judges.
COLE, J., opinion delivered the of the court, SUTTON, J., joined. BATCHELDER, 593-95), (pp. J. delivered separate opinion concurring part dissenting part.
OPINION COLE, Circuit Judge. rights
In this civil arising action under Rights Title of the VII Civil Act of (“Title 2000e, § seq. VII”), U.S.C. et § 42 U.S.C. and Ohio Revised Code 4112.02, § Plaintiff-Appellant Carolyn Up- (“Upshaw”) shaw appeals the district grant of summary judgment court’s to De- fendant-Appellee Ford Motor Company (“Ford”) and the denial her motion for judgment. relief from Upshaw argues that Ford promote failed to her on the sex, basis race and and retaliated complained her when she of dis- following reasons, crimination. For the we in part AFFIRM in part. REVERSE Salary Grade 7 promotion in-series I. BACKGROUND supervisor. production background A. Factual Upshaw’s pre-termination Equal 2. Upshaw’s employment Employment Opportunity Commis- (“EEOC”) charges sion and lawsuit an African-American
Carolyn Upshaw, Salary woman, as a for Ford worked IS, August charge a. Supervisor April Production Grade 6 13, 2003, Upshaw filed a August On termination. through her March 2005 contending charge with the EEOC *4 at in the Upshaw began her career Ford promote had refused repeatedly Ford to plant, truck Wayne, Michigan company’s of her race and sex. She the basis 2001, but, sought a in and obtained only alleged Salary that she was the Grade Sharonville, Michigan to Ford’s transfer in production supervisor 6 her work zone she worked until plant, transmission where had improperly promoted and that Ford terminated. she was male similarly-situated production white 7 contin- supervisors Salary to Grade while to Upshaw transferred At the time that promotion. ually denying her the same Brooks, E. plant, the Robert Sharonville 26, 2003, male, recently August On Brooks submitted had an African-American EEOC, to the response denying Ford’s position supervi- the promoted been to against Up- had discriminated Ford position a with- personnel, sor for salaried the explaining shaw and nine of ten of Human Department in Resources. the Salary Grade 7 employees promoted the overseeing included Brooks’s duties 1, 1, January July 2000 and between 2003 in- promotions process, which “in-series” Plus,” and had been rated “Excellent promotion higher salary grade volves had remaining employee the been rated raised job. the After Brooks within same Upshaw had “Excellent.” Because been in plant’s performance the standards rated “Excellent” rather than “Excellent 2001, employee an to have both had review, performance on her 2003 Plus” salary grade in for at worked his current quali- Ford stated that she had not been twenty-four an months and received least promotion. fied an in-series Ford’s rating of “Excellent performance annual depicting included a chart response in- higher eligible or to be for an Plus” activity from plant’s promotion Sharonville promotion. performance series through 2000 2003. The dismissed EEOC system rating included seven different charge. levels, “Outstanding” from ranging was “Unsatisfactory.” “Excellent Plus” During discovery action, in this just “Outstanding,” below fol- level response to admitted that Ford’s “Satisfactory by “Excellent” and lowed he EEOC was inaccurate because following per- received the Plus.” wrong year’s performance used re- ratings, formance with each assessment in preparing Although views the chart. performance during to her corresponding the em- the chart showed all but one of (1) January previous year: pro- calendar ployees received an in-series who (2) Plus”; January 2002, “Satisfactory having rating in 2002 as of “Ex- motion (3) 2004, 2003, “Excellent”; January Plus,” fact, 2002, “Ex- in in two white cellent (4) 2005, cellent”; males, Stephen “Excel- January Fletcher Steven Green, Salary employ- promoted from Grade Over the course of lent.” 7 ment, Salary ratings an Grade with “Excel- repeatedly denied was Also, in an August lent.” African- fied that he heard about male, Alexander, American charges Charles was EEOC before Ford drafted its promoted Salary response, Grade 6 but could Salary he remember an source of with less than “Excellent the information. Grade Plus” rating.1 Up- Ford’s chart also misstated c. charge June 200b rating shaw’s 2002 as “Excellent” when actually “Satisfactory she had been rated On June filed third Plus.” charge, alleging EEOC that on June 2004, she reprimanded failing At deposition, his Brooks attributed the safety wear a designated vest area inaccuracies on the chart to his failure to previous retaliation for her com- verify the data compiled associate plaints. filed a response with the department. his Brooks testified that he EEOC listing seven salaried employees only learned of the mistake after drafting (four Caucasian) of whom were who were EEOC, response point, disciplined for a “violation of Corporate Fletcher, Green, he realized that and Alex- Rules,” Safety the same charge brought ander should promoted. not have been *5 against Upshaw. Although the dis- EEOC Brooks never notified EEOC of the claim, Upshaw’s missed she asserts error. response misrepresented the facts b. January charge during because she learned discovery that 200b safety several of the violations attributable 28, 2004, January On Upshaw filed a to the other employees were more serious second charge, alleging EEOC that in re- infractions, and that she was the only sala- taliation for August her 2003 EEOC ried personnel at the plant Sharonville charge, her supervisor, Robert “Doug” have been disciplined for failing to wear Baur, held a meeting with the hourly em- safety vest. ployees supervision under her without her knowledge. Upshaw’s Ford denied claims b, d. November lawsuit 200b argued and only two Sharonville man- 4, 2004, On November Upshaw filed a (neither Baur) agers of them were even complaint in the United States District aware of Upshaw’s August 2003 EEOC Ohio, Court for the Southern District of filing. Ford also Upshaw’s contended that alleging that Ford discriminated against complaint of differential treatment was too her on by the basis her race and sex vague respond to allow Ford in failing promote her Salary Grade 7 detail. The Upshaw’s EEOC dismissed and her subjecting heightened scruti- complaint and her a right-to-sue issued ny. letter, but she did not file lawsuit within the allotted time. 3. Ford’s documentation During discovery action, in the instant complaints produced Ford internal emails to Baur and a. Compilation following timeline others that pre-dated Ford’s response to Upshaw’s August 2003 EEOC EEOC, mentioning Upshaw’s 2003 charge charges, EEOC asserts es- tablishes the falsity intentional of Ford’s After transferring to the Sharonville Moreover, response. Baur plant testi- Upshaw filed numerous com- deposition records, 1. Brooks testified in his reviewing that al- withoul he could not though he knew that Alexander verify had not re- whether Alexander had been rated “Ex- rating ceived an something “Excellent Plus” cellent” or lower. of Human conference call discuss the timeline plaints Department with the Hughes-Sharp Brooks and James regarding disputes various Resources preparing. were On or about December em- hourly salaried employees, had with 14, 2004, Taylor James Brooks emailed complaints union. ployees, These request disciplinary draft action by Human Resources em- handled were At against Upshaw. deposition, Brooks and Niko- ployees Hughes-Sharp Brandee explained Taylor’s sought permis- that he Johnson, significant and consumed a las sion terminate “on the basis Despite many amount of their time. complaints prob- the numerous employees, other interpersonal issues with [Ford], the lems that she created for fact including supervisors, nitpicking almost requiring that her through performance 2005 annual reviews two, approximately people full time two generally positive. section[, specifi- Resources] the [Human August days Five after filed her Johnson,] Hughes-Sharp to han- cally, charge, Taylor, Gerald 2003 EEOC dle complaints these and issues and personnel manager for Human Resources (JA stop point, some we needed to this.” following plants, wrote the note four 445.) Taylor did take immediate ac- a conversation he had with documenting interim, request, tion on the and in the Brooks, L. an- Robert Brooks James following events occurred. employee: other Human Resources Brooks and Discussed J[ames] preceding Upshaw’s Events March A possibility looking Robert Brooks 2005 termination *6 activity complaint Carolyn the into scrap Upshaw’s reports a. daily peo- it Upshaw since seems almost Ford, “scrap” At consists of manufac- complaints. are her ple investigating parts tured that cannot be used for their # time complaints, The invested & requires purpose. intended an accu- investigations, these [sic] outcome of accounting scrap rate the amount of activity if That the data reveal excessive cost, produced quality, on shift for each results, little then it up or no write w/ Although and inventory purposes. control termination I will if it and evaluate Upshaw submitted affidavits other Ford warrants said release. noting scrap that employees counts were (Joint (“JA”) 779-80) Appendix (emphasis generally that it “stan- imprecise and added). deposition, Taylor In his testified numbers,” scrap to estimate practice dard “complaint activity” the term that referred (JA 335), 2005, she concedes that in complaints to internal dai- —“the Bradfish, supervisor, consistently Maria traffic, ly charges, investigations, the the Upshaw noted needed reduce her the of those”—-not her recent and results scrap per- a daily higher count receive (JA 539-40.) In October charge. rating. formance 2003, began working with James hourly employees team se- Hughes-Sharp compile “timeline” of Gary lected Barrett and David Gibson as Taylor’s Upshaw’s employment review. their shift “coordinators.” Coordinators Request discipline following Up- b. hourly employees responsible are for col- shaw’s lawsuit lecting counting scrap and accumulated at 7, 2004, reporting the of a shift and the approximately December end On lawsuit, supervisor, who enters the Upshaw month filed her amount the one after sys- reporting Taylor arrange number Ford’s internal Hughes-Sharp emailed 10, (“PMHVs”). January On Gibson in- tion of personnel tem. scooters representative Up- his union Under Ford’s policy, formed written PMHV em- amount of misreporting ployees perform thorough daily shaw was must her shift. Gibson as- scrap produced on inspection equipment, document the pressured him serted that had to results, necessary and take corrective numbers, under-report scrap and that action In using May before vehicle. refused, she lowered when he had had Upshaw was counseled2 for com- supported reports. count in her Gibson pleting inspection report prior and discrepan- documented allegations PMHV, using formally and she was later Upshaw’s reporting occurring cies between reported policy for violating Ford’s PMHV January 7, January through 8, 11, February on and scrap records and his handwritten always admitted she did not conduct a pages transcripts of electronic sent pre-use inspection, PMHV but she submit- Upshaw regarding him shift between employees ted affidavits other stating scrap during period. count the same time that, despite policy, its written Ford al- questioned Upshaw about Gib- Bradfish employees lowed to use without PMHVs 11, 2005, allegations January son’s and inspection until during lunchtime each acknowledged there dis- shift. crepancies between the Gibson numbers c. reported Dispute representative to her and those she had with union system. Human
recorded The Re- Under terms Ford’s collective Department subsequently sources conduct- agreement union, bargaining with the investigation ed an and found merit to when representatives union make health Gibson’s claims. safety complaints grievances filed —i.e. reporting Upshaw After union by regarding plant safety the union risks representative, formally Gibson also com- concerns need immediate atten- plained to Ford that had harassed management respond must within tion— *7 against him and retaliated him when he twenty-four 2005, early hours. In March had the scrap refused lower count. Gib- union representative Upshaw asked to as- son following claimed that his refusal to sist him addressing eighteen in health and count, scrap Upshaw lower the removed safety complaints depart- raised her him position from his as 2005, coordinator and 3, repre- ment. On March the union line, assigned him to on work the where sentative wrote a inform- note Bradfish “birddogged” closely monitored —him ing Upshaw accept her that refused to the — and him Up- list, denied breaks. Ford found and told him safety that health and shaw’s actions inappropriate and concluded responsibility was not her and that he was that she had the company’s policy violated following procedure. not the proper Brad- prohibiting against employees. retaliation subsequently fish to walk asked through department represen- the with the
b. PMHV incidents tative, develop proposed corrective actions 2005, In February various for employ- complaint, sign each and and return reported ees complaints twenty- had violated the to Bradfish within safety regulating opera- Ford’s rules the four Although Upshaw completed hours. deposition, explained person's supervisor, 2. At per- Robert Brooks where the if it's a issue, concept "coaching counseling”: bring of person and formance will the (JA 471.) discipline.... not "That's formal office coach That’s and or counsel him.” 753.) (JA specified that request also forms The returned the walk-through, she Up- had considered Human Resources not reported Bradfish unsigned. to Bradfish Resources, recommending claims EEOC shaw’s Human actions request Taylor reviewed termination. insubordination. Upshaw for cited and gave approval, and Upshaw’stermination terminated, 5. March effective events, James foregoing Following History B. Procedural for request Taylor a second Brooks sent termination, Upshaw filed Following her concerning Upshaw. action disciplinary EEOC, charge with an additional following Brooks’s sub- March On her in retal- claiming discharged that Ford Taylor request, a draft of mission of and, Au- charges, for iation Brooks, like we stating: “Looks emailed 24, 2005, Upshaw amended her 2004 gust 785.) (JA her.” gunny-saking [sic] are Up- complaint add a retaliation claim. had that he deposition Taylor explained Complaint sets First Amended shaw’s he knew Ford because made the comment following claims relief: forth case, good and he wanted Brooks II, I race and Counts and discrimination “ger- that was not everything take out under U.S.C. unlawful retaliation it did so that allegations the four mane” to 2000e-3; III, 2000e-2, § § race dis- Count un- firing Upshaw look like Ford was 1981; § under U.S.C. crimination fairly. IV, race discrimination under Ohio Count 4112.02(A); V, request § on March un- finalized the Revised Code Count termination under sought Upshaw’s lawful retaliation Ohio Revised Code and VI, following 4112.02(1); wrongful § and Count dis- on a combination based (1) company public crimination in contravention Ohio falsification four incidents — (2) complaint no scrap; The amended raises by under-reporting policy. records the basis of sex. claim discrimination on and retaliation Gibson harassment (3) count; complaint does seek rein- scrap The amended falsify the refusing employment years with two statement of company safety poli- multiple violations or an award grade pay differential repeated failures cy to PMHVs related (4) compensatory pay, judgment front vest; required safety to wear a relief, punitive dam- damages, equitable request pro- further The insubordination. attorney fees and ages, reasonable vided: costs. non-responsive Ms. has been
the has been counseling, management 16, 2007, Ford moved for On March claims, her that she is summary unable to convince on and judgment all six interperson- 28, 2007, granted the the of court improvement need of on June Upshaw’s complaint de- skills, teamwork and dismissed establishing al motion and (1) found that: relationships entirety. with in its The court working veloping limited her discrimination her. These four incidents those around argue expressly by failing to race Upshaw’s total dis- claims examples are of Ms. on premised gender; her claims were require- regard Company policies and of (2) disregard- be Upshaw’s affidavit should of a required ments and of the behaviors legal ar- improper it contained is- because of ed ... The combination supervisor personal opinions, speculation, certainly gument, herein should sues outlined contradictions; (3) failed request for termi- the Plant’s support issue of material genuine demonstrate nation. 584
fact to rebut Ford’s proffered legitimate similarly-situated motions to white males non-discriminatory promot- reasons continually denying while pro- her such (4) her; ing terminating her and for motions because of her race. Title VII claim public policy Ohio employers forbids discriminating preempted by Title VII. against “any respect individual with terms, conditions, 2007, compensation, [her] July 9, or
On filed a motion privileges employment, to alter or amend the judg- district of such court’s because race, ment under color, Federal sex, Rules Civil Proce- individual’s religion, or 59(a) (e), or, alternatively, dure origin.” national 42 § U.S.C. 2000e- from judgment 2(a)(1). relief under Federal Rules 60(b)(1) (b)(6). Up- Civil Procedure At summary-judgment stage, the shaw attached to her motion several tran- plaintiff or must adduce either direct cir scripts depositions, asserting that the prevail cumstantial evidence to aon Title court made numerous legal factual and VII race-discrimination claim. See DiCar 6, February errors its decision. On Potter, 408, (6th lo v. 358 F.3d 414 Cir.
2008, the court
Up-
denied the motion.
2004).
Because
offers no direct
shaw now appeals.
discrimination,
evidence of
racial
the
Douglas/Burdine
McDonnell
II.
burden-shift
ANALYSIS
ing
applies.
framework
See McDonnell
A.
Standard
review
Green,
Douglas
792, 802,
v.
411
Corp.
U.S.
We review de novo a district
(1973);
93 S.Ct.
mains at
plaintiff.”
all times with the
Di
B. The
Carlo,
(internal
district court did not err
in
granting summary judgment Ford omitted). failure-to-promote
on 1. Prima claim case facie Upshaw contends that Ford To prima discrimi- make out a facie case of nated giving pro- in-series race discrimination in failure-to-pro-
585 Thus, light in the context, viewing the facts most plaintiff a must show that: mote (1) class; Upshaw, because Ford did not protected of a favorable is member she (3) (2) for promotion; granting adhere its stated criteria qualified was she has her bur- promotions, for and denied the in-series she met “considered she was (4) qualified. employees establishing of den of that she was “other promotion”; were not mem qualification similar who fourth of the The element McDonnell pro class received protected of the bers requires plaintiff test Douglas show City Columbus v. motions.” Grizzell of individual similarly-situated that a outside (6th 711, Police, 461 719 Cir. F.3d Div. of See, class protected promoted. was 2006) Dep’t v. (citing Sutherland Mich. of Cincinnati, e.g., v. Univ. 215 Johnson of (6th 603, F.3d 614 Treasury, Cir. 344 (6th Cir.2000) 561, (citing F.3d 572-73 2003)). concedes that satis Ford 802, Douglas, 411 at McDonnell U.S. 93 prongs and third but asserts fies the first 1817). Upshaw S.Ct. has established that below because her evaluations were similarly situated to was Fletcher and Plus,” not qualified she was “Excellent Green, males, they two white because were promotion. an in-series Salary production supervisors also 6 Grade promotions for in-series in applying 2002. qualified she is To establish that although has also shown that plaintiff a Title VII need position, for the promoted Fletcher and Green were employer’s that she satisfied an only show 2002, in ratings “Excellent” she was “objective” qualifications. See Wexler passed promotions over for in-series Furniture, Inc., 317 F.3d Fine White’s 2004, 2005, 2003, when she was rated Cir.2003) (en banc) (hold (6th 564, 575-76 successfully “Excellent.” thus estab- She qualifications at assessment ing Green, similarly- lished Fletcher and only “objec stage facie includes prima employees protect- situated outside (citing Aka v. Wash. qualifications”) tive class, promoted, ed were while she was (D.C.Cir. Ctr., 1284, F.3d 1298 Hosp. 156 Hicks, Mary’s not. See St. Ctr. v. Honor 1998) (en banc) “an (pointing out that em 506, 2742, 502, 509 113 S.Ct. 125 U.S. strong reliance sub ployer’s asserted (1993). 407 L.Ed.2d may about the jective feelings candidates discrimination”)). it is Although un mask adverse ac- Articulated reason for never received an disputed tion during rating “Excellent Plus” the relevant uniformly Given that has established a period, apply time Ford did prima facie on the promotion its in-series criteria. Such dis case discrimination race, legiti- implies articulate a parate application the criteria basis must non-discriminatory pro- reason for intentionally have relaxed mate that Ford could Green, Fletcher, moting Fletcher and Green but requirements its failing promote Upshaw Afri from 2003 white males and one Alexander —two Burdine, through male—all of 2005. See 450 U.S. can-American whom merely 1089. This is with lower-than “Excel S.Ct. promoted production, not of persuasion, v. Atlanta burden ratings. lent Plus” See Vessels credibility and it involve a assess- does not Indep. Sys., Sch. Cir.2005) (“[T]o Plumbing he ment. See Reeves v. demonstrate that Sanderson Inc., Prods., 133, 142, 120 S.Ct. plain 530 U.S. qualified position, for the Title VII (2000); see also he or 147 L.Ed.2d Bd. only tiff need show that she satisfied *10 Keene Coll. v. Swee- objective qualifications.”). Trustees State employer’s an 586 295, (6th Cir.1989) (Table) 24, 2,
ney, 25 n. *5 (concluding 439 U.S. 99 S.Ct. 58 at (1978) (noting L.Ed.2d 216 that “the em- that defendant’s assertion that its mistake if simply is satisfied he ployer’s failing burden in to hire a plaintiff constituted reason). ‘explains ‘produces he has or what done’ legitimate non-discriminatory legitimate nondiscriminatory that Fletcher and pro- Given Green were ”). reasons’ faulty performance moted based on rat- ings, discovery, not known until and that comparing In treatment testimony, rebut Upshaw failed to this Green, of Fletcher and we first look successfully met its burden of estab- testimony to the of Robert Brooks. lishing legitimate non-discriminatory rea- mistakenly that he pro Brooks testified an granting son not in-series Fletcher, Green, moted in and Alexander promotion between 2003 and 2005. 2002, they and did not realize that had ratings received than the purported lower 3. Pretext mandatory
ly “Excellent Plus” evaluation until he noticed error after submitting may A plaintiff that an establish response Ford’s EEOC Au employer’s employ stated reason for its gust charge. accepted 2003 re ment action was pretextual showing sponsibility explained the error but (1) (2) fact, that the reason had no in basis in investigating promotions, he actually not did motivate the challenged had employee learned that an in de (3) conduct, or explain is insufficient to gave partment promotion “the without challenged conduct. Manzer v. Diamond concurrence, and [his] didn’t find out [he] Co., 1078, Shamrock Chems. 29 F.3d 1084 it promotion about until after the was com (6th Cir.1994). plaintiff produce The must (JA 464.) pleted.” jury “sufficient evidence from which the have employer’s reasonably
Courts held an ex reject could [the defendants’] planation anof admitted mistake in consid explanation and infer that the defendants ering promotion awarding intentionally to one discriminated him.” employee Co., legiti over another Kroger 858, constitutes Johnson v. 319 F.3d 866 (6th Cir.2003) (alteration mate nondiscriminatory Pa reason. original). Cf. City v. may skvan jury reject Cleveland Civil Serv. “The not employer’s an Comm’n, 1233, 946 F.2d 1236 ... explanation Cir. unless there is sufficient 1991) (“Refusal promote upon based basis the evidence for so.” doing Man negligence, zer, or oversight, inadvertence is 29 If employer actionable.”); see Kidd v. Am. an honest proffered MBNA belief basis for N.A., Bank, (3d App’x action, 93 F. 401 Cir. employment the adverse and that 2004) (the fact employer claimed belief arose reasonable reliance on have made a mistake in considering plain particularized facts employ before the application tiffs not suggest decision, did a weak er when it made the the asserted ness, or implausibility, incoherency in em reason will not be pretextual deemed even ployer’s explanation); proffered if it Sybrandt Harrison See erroneous. v. City U.S.A., Inc., v. Hous. Auth. Pittsburgh, Depot, Home 560 F.3d Cir.2004) (3d (6th Cir.2009) Fed.Appx. (employer’s (quoting Majewski purported Inc., “mistake” legiti Processing, constituted a Auto. Data 274 F.3d nondiscriminatory (6th Cir.2001) mate for employ (noting reason that “as promote plaintiff); er’s failure to Leigh long see an employer as has honest belief in v. Bureau Lottery, proffered State 876 F.2d nondiscriminatory its reason for
587 reason”); the that was the real employee, employee an discrimination discharging Busters, Inc., pre- also v. Dave & that the reason was see No. cannot establish Rufo (6th 06-3111, *4 ultimately 2007 at simply it is WL Cir. because textual 2007) incorrect”)). Jan.31, (explaining that plaintiff shown be ques- failed offer “call into evidence to argues that Ford’s error veracity of [employer’s tion the motiva- changing response and its in its EEOC employer did not that tions]” and establish pro Fletcher’s and Green’s defense for discrimination). on based its decision “mis evidence that its claim of motions are reject Upshaw’s assertion We also that is discrimination. She pretext take” for Ford’s claim mistake belied changed that its that fact Ford asserts 23, 2002 January email from Sharonville original defense before the EEOC—that Resources The email Human associate. and Green were rated “Excellent Fletcher that names of requests supervisors submit claim that the two its later Plus” —with adds, promotion, candidates for “[i]f accidentally, promoted shows men were you considering employee an for an in- are mendacity, and intentional “repeated promotion guidelines, series outside of jury conclude is evidence could your HR you must contact Associate.” 5.) (Upshaw Reply Br. of discrimination.” (JA 741.) Although Brooks testified that However, own speculation changed he for in- standards own internal knowingly Ford violated its only employees so that promotions series procedures, unsupported by allegation twenty-four months of service in their fact, Brennan v. enough. is not See eligible, pay grade would be the referenced Co., Fed.Appx. 19- Supply 237 Tractor that, occasion, email demonstrates on Ford Cir.2007) (“[M]ere conjecture that 20 employees certain who did not promoted is a employer’s explanation pretext [the] requirements. meet standard Howev- its an intentional discrimination is insuffi for er, given party that neither has put forth judg summary for denial of cient basis suggesting that Fletcher evidence reject may ... court not an em ment. [A] intentionally Green were recommended for unless ployer’s explanation [of action] its “outside-guidelines” promotion, Up- an for is sufficient basis the evidence there lacks argument shaw’s merit. omitted). so.”) (internal doing citations Therefore, because has failed to Further, regardless of whether Brooks’s genuine raise a issue of material fact as to legitimate, Upshaw’s claim of mistake is pre- whether Ford’s claim of mistake was does establish discrimi discrimination, text for race we affirm the reason for ac nation was real grant summary court’s judg- district See Bureau Em tion. Samadi Ohio failure-to-pro- Ford on Servs., ment Fed.Appx. ployment mote claim. (6th Cir.2002) failed (finding employee employer’s establish reasons granting district court erred in C. The than hiring plaintiff someone other summary judgment Up- pretext when the hired individual “had su shaw’s retaliation claim perior qualifications” experience [and] Mary’s alleges also that Ford unlawful- position); see also St. Honor (not Ctr., ly terminated her retaliation 509 U.S. S.Ct. initi- proved charges cannot to be numerous EEOC ing that “a reason be prohibits unless it is ation of this lawsuit. Title VII pretext ‘a for discrimination’ false, retaliating against an employer reason was shown both *12 588
employee
filing
charge.
Avery,
(“Further,
an EEOC
See
at
action.
104 F.3d
861
2000e-3(a).
§
again,
42
Once
be-
link,
U.S.C.
to establish the element of
a
causal
no direct
cause
offers
evidence
plaintiff
required
proffer
is
evidence
discrimination,
racial
the McDonnell
sufficient to
that
raise
inference
her
Douglas/Burdine burden-shifting frame-
protected activity
likely
was the
reason for
applies.
Douglas,
work
See McDonnell
action.”) (internal
the adverse
citations and
Burdine,
802,
1817;
411
at
U.S.
93 S.Ct.
omitted).
quotation marks
252-53,
1089;
450
at
DiCar-
U.S.
101 S.Ct.
The district
Up-
court determined that
lo,
F.3d at
358
establishing
shaw met her
burden
a
prima
tempo-
facie case based on the close
1. Prima
case
facie
proximity
ral
her
filings
between
EEOC
prima
To
a
make out
facie case
her
and
termination:
retaliation,
“must
establish
(1)
While
came al-
that:
she
in Title
termination
engaged
VII-protect
(2)
19
activity;
most months after her
ed
knew that
en
initial EEOC
[Ford]
(3)
gaged
activity;
charge, Upshaw
in the protected
made
additional
[Ford]
two
subsequently
charges
took an adverse employment
only
her
filed
lawsuit
four
(4)
[her];
against
action
the adverse
months before she was fired. Given the
causally
pro
[i.e.,
action was
to the
connected
facts
Taylor’s
discussed above
activity.”
tected
notes,
See Ladd v. Grand
handwritten
and his discussion
R.R., Inc.,
Trunk W.
552
502
F.3d
Upshaw’s potential
about
termination
(6th Cir.2009).
parties dispute only
The
Brooks,
with James
Robert
the fourth
element —whether
es
days
occurred within
of Ford’s knowl-
a causal
tablished
connection between her
edge
August 2003 EEOC
various EEOC
charges
Ford’s decision
charge,]
relatively
and the
easy burden
to terminate her. To establish a causal
case,
of establishing
prima
a
facie
“
connection,
plaintiff
‘proffer
must
evi
purposes
summary
Court assumes for
dence sufficient to
raise
inference
judgment
could raise an
her protected activity was the
reason
likely
inference that
charges
and her ter-
”
for the adverse action.’
Avery
EEOC v.
mination
‘wholly
were not
unrelated.’
(6th
Corp.,
Dennison
104 F.3d
861
(JA 225.)
agree.
We
Cir.1997) (quoting Zanders v.
R.R.
Nat’l
We have held that
the combination of
(6th
Passenger Corp.,
F.2d
898
1135
temporal
(citations
proximity
close
an
Cir.1990)
between
em-
omitted)); see
Ab
also
ployer’s heightened scrutiny
Co.,
and that
Inc.,
bott v. Crown Motor
348 F.3d
(6th
plaintiffs
an
Cir.2003) (“[T]he
filing
charge
EEOC
is
plaintiff
sufficient “to establish the causal nexus
produce
must
sufficient evidence from
a prima
needed
establish
which one could
facie case”
draw an
that the
inference
Elec.,
retaliation.
employer
Hamilton v.
would not have
Gen.
taken the ad
Cir.2009)
plaintiff
(holding
verse action
had the
summary
plaintiff
judgment
in-
engaged
activity
defendant was
that Title
VII protects.”).
appropriate
plaintiff
subjected
where
proof
The burden of
prima
“minimal”;
heightened scrutiny
facie
stage is
all the
few months after
plaintiff must do
put
age-discrimination
forth some credible
he filed
claim with
EEOC).
Here, Upshaw
the court
proffered
enables
to deduce
has
there is
causal
subjected
connection between
evidence that
protected
activity
retaliatory
and the
heightened scrutiny soon after she filed
vest;
safety
ually
required
undisputed
failing wear
charge.
It is
her 2003
*13
(4)
submit-
began de-
and
Ford has
and Brooks
insubordination.
Hughes-Sharp
that
Upshaw’s employ-
Corpo-
a timeline of
ted
evidence its “Standards
veloping
as
they requested
Conduct,”
and that
stating
“[a]ny
in fall
that
Ford
ment
rate
submit infor-
employees
Company
that other Ford
or
employee who violates
law
to Hu-
complaints
action,
mation about
subject
disciplinary
policy is
scruti-
heightened
Ford’s
man Resources.
employ-
may
include termination of
6, 2004
by a December
ny
evidenced
is
(JA 310.)
noted,
As we have
ment.”
employee Mark Striker
email from Ford
merely
production,
is
one of
Ford’s burden
stating: “I would like
Hughes-Sharp,
and it does not involve a
persuasion,
I
this.
would assume
you
talk to
about
Reeves, 530
credibility assessment.
U.S.
type
is the
of documentation that
that this
explana-
at
fered reasons for Upshaw— Maybe nightly, Green: night supervisor safety timely violations and her failure to resolve union safety health and com- Question: you Have ever of any- heard plaints not typically warrant for- —do body being terminated from the Sharon- discipline mal at plant, Ford’s Sharonville plant driving ville for that vehicle First, let alone termination. although inspected? been not response to the EEOC in summer Green: No. 2004 purportedly named seven sala- other ried employees who were disciplined for Question: your Would it be knowledge violating “corporate Safety Rules” at or that understanding an unin- driving plant, Sharonville the violations actu- spected for a vehicle first offense is a ally more serious by than those committed terminable at offense Ford? Upshaw. Moreover, Upshaw submitted Green: No. testimony affidavits other Ford 498-500.) JA Given foregoing {See employees expressly stating that other no statements, a jury reasonably could con- supervisor has disciplined ever been that safety clude violations used to failing to wear*a safety driving vest or justify terminating Upshaw were contrived uninspected regard PMHV. In safe- was, fact, to mask what retaliation for violation, ty-vest Robert Brooks stated complaint activity. “[Upshaw] only salary I person Second, know” who was disciplined failing employees other Ford and for- comply with the regarding rules the wear- Ford employees mer testified that no su- (JA 489.) ing of protective safety vests. pervisor expected could eigh- be to resolve to “do asking Upshaw could not recall ever safety complaints by health teen (JA 425.) she did something” not do. twenty-four- representative within union not they did “know period, hour Given that has succeeded disciplined ever been who has anybody safety raising as whether the question complete health and failing fired or genu- insubordination were violations and (JA 501.) within 24 hours.” safety forms termination, we must ine reasons for her to his knowl- Green stated Stephen two, to the turn our attention more serious health and safe- complete a failure edge, scrap re- allegations of Ford’s —inaccurate hours twenty-four within forms ty hourly against an porting and retaliation (JA 501.) Further, offense. a terminable employee. supervisor, Mike production former scrap some of her concedes that: Rubin, explained in an affidavit in- reports early January 2005 were the Ford practice 20. Standard reports compared accurate with the when *15 that was health plant Sharonville however, Ford by Gibson; argues she that were safety reports typically and misreporting had treated previously never shift, day during the be- initiated as a estimating scrap serious offense or engi- all that when cause termi- discipline that in the or would result support personnel and neers that supervisor. nation Ford counters of a duty correcting assist a Upshaw’s underreported scrap was seri- safety violations. problem, Taylor depo- and testified at ous practice, and It was 21. never standard time Ford considers a “first sition that unusual, highly would have been reporting scrap” incorrect inaccurate or safety reports to be for health and 547.) (JA grounds to be for termination. initiated on shift. second Further, if that James testified unusual for highly It would be 22. also Human had ever been aware Resources reports safety health to be and mis- production supervisors who had other supervisor, dumped production on a numbers, company represented scrap supervisor, let alone second shift 447.) (JA something.” “would have done at one time. Ford’s Upshaw calling introduced highly It unusual and would also be 23. an affi- claims She submitted into doubt. production supervi- excessive for a Rubin, asserting that he davit Mike sor, production su- especially and supervisor former reported another many that pervisor, given to be falsifying superintendents for Sharonville reports only safety health and “any they not take scrap reports, but did them. complete 24 hours to against super- action disciplinary [the [sic] any production I am aware production the increased visor] because than supervisor [] other 336.) (JA good.” them look records made or terminated disciplined who was that was never Rubin stated “[t]here also alleged for this reason. requirement at the Ford any emphasis or 338.) accu- (JA completely to have though plant Human Re- Sharonville Finally, numbers,” explained rate scrap insubordination cited for sources su- any production he was aware of resolve the union “not timely failure for her for re- ever terminated pervisor who was testified she did complaints, Bradfish scrap incorrect numbers.” or porting false Upshaw for insubordination not cite (JA 335.) Considering the evidence the union timely failure to resolve Upshaw, there light favorable January 2005 and that she most complaints clearly question pretty as to whether Ford actu- Green: To much direct the flow scrap as an ally treats the falsification of of the maintenance activities.... lead to termination. offense that could Question: if is a So there down ma- chine, typically you be standing would the issue of retali- This leaves there right supervising produc- against ation Gibson. concedes flow to make that everything tion sure policies, that under Ford’s retaliation gets ... worked the down around ma- against reports who an infrac- employee chine? management tion to could warrant disci- argues pline, but she the evidence Green: Yes. allegations support
does not Question: anybody you Did accuse she Gibson. in- retaliated Gibson birddogging standing them formed that after he to falsi- refused machine? down fy scrap reports Upshaw, reas- she Green: Yes. him, line, signed him to hounded Question: Who does that? refused to him take let breaks. Green: Techs. however, explains, reassigned Question: They it? don’t like Gibson to the line because asked he Nobody somebody Green: likes stand- change position; his she clarified that your ing over shoulder. change when a coordinator wants to Question: you, production But as *16 position, supervisor expected his to com- that, supervisor, you have to do are in- ply, request so she acceded to Gibson’s to to structed do that? (JA 601.) job. work the riveter” “auto I’m going Green: to there be whether January 12, Bradfísh’s email to 2005 there, yes. I’m told or not. I’ll be James notes that Upshaw had not (JA 502-04.) away” posi- “take[n] Gibson’s coordinator tion away pager and had not taken his In considering a motion for sum retaliation, supporting Upshaw’s testimo- mary judgment, judge’s “[t]he function ... (JA 739.) ny. Moreover, Upshaw testi- is limited to determining whether suffi fied that she had stood dur- behind Gibson cient evidence has presented been to make ing his shift because his auto riveter a proper jury the issue question, and not malfunctioned, and common at practice the the judge findings make of plant required supervise him while States, fact.” Bultema v. United 359 F.3d operated manually. he the machine Affi- Cir.2004) 382 (quoting Ivy 60 St. testimony davits and supervi- from other Alexander, Corp. v. 822 F.2d 1435-36 sors Upshaw’s testimony. corroborate (6th Cir.1987)). In arguing if “[e]ven instance, deposition, For at Green Stephen Upshaw could show that Ford fired her testified as follows: mistake, based aon or even based on an Question: down, aIf machine did arbitrary her, get desire to of rid she must ” Doug Baur pro- ever instruct of the (Partial do more.... Concurrence and supervisors duction to stand at the down 26), p. Dissent ap dissent Ford operation? pear to have evaluated the evidence and
Green: Sometimes he did. Wanted determined that would be unable happened. make sure it prevail trial on issue of whether Question: Okay. And what would be the Ford’s rationale for her termination was purpose (See 52.) production for the supervisor pretextual. Ford Br. operation? trial, stand with the downed may in fact fail to win at but such an
593
striking only
at the
rather than
the inadmissible
simply improper
sum
evaluation is
stage
thereof.
v.
proceedings.
portions
See Giles
Univ.
mary judgment
(N.D.Ohio
evidence,
Toledo,
foregoing
on
rea
241 F.R.D.
“Based
2007) (“In
strike,
juror
resolving
could conclude
a motion
sonable
Although
use
not
scalpel,
not retaliate
Gibson.
Court should
‘a
a butcher
did
knife,’
employee
striking]
terminate an
portions
is entitled to
...
affidavits
internal poli
satisfy
requirements
an actual violation
its
for
do
cies,
56(e).”).
sug
However,
introduced evidence
Rule
has
because the infor-
that these “actual violations” were mation in the
gesting
affidavit was cumulative
nothing
“trumped up” charges.
testimony,
more than
Upshaw’s deposition
any error
Jones,
it
(finding
ly [ ] III. CONCLUSION true, longstanding up motivations above, For the reasons forth we set firing employee”). jury The should grant AFFIRM the district court’s of sum- question. Singfield See v. Ak resolve this mary Upshaw’s judgment Ford on fail- Auth., Metro. Hous. 389 F.3d ron claim, ure-to-promote but its REVERSE (6th Cir.2004); see Bax also White judgment claim retaliation Corp., ter Healthcare and REMAND that claim for trial. (6th Cir.2008). Accordingly, we reverse grant summary judg the district court’s BATCHELDER, M. Circuit ALICE claim ment on retaliation Judge, concurring dissenting part claim for trial. remand that part. Evidentiary Rulings join D. majority opinion I except *17 11(C), I section from respectfully matter, ancillary As an claims dissent because there is no material issue failing that the district court erred of fact as to whether Ford’s stated reasons consider her sex discrimination claims and firing Upshaw pretextual. for were Tracy McCullough the affidavits Calbert, (“Cosby”) two African- Eugene True, parties disagree the about in- Ford employees. American For former serving as cidents the basis court, by the district provided the reasons Upshaw produced termination. evidence finding affirm its did not we two of stated reasons for her a cognizable assert sex discrimination (minor firing safety violations and a failure affii-m its exclusion of the affida- claim union sign safety griev- health vits. ance) not, in practice, actual were termina- Also, falsify- ble offenses. denies argues that the Upshaw also ing scrap reports retaliating against or by striking forty- court erred district her; hourly employee reported who four-page, 195-paragraph affidavit. We moreover, presented evidence that it regarding review decisions admission was to estimate supervisors common of evidence for abuse of dis and exclusion scrap employees and to monitor counts cretion. See Finch Monumental Life manually operating machines. “down” Co., 1431-32 Cir. Ins. 1987). although disputes factual court But there are The district abused its dis affidavit, by striking regarding the merits of Ford’s reasons cretion the entire firing Upshaw, jury would not be “complaint shaw’s activity” as evidence upon called to decide whether Ford alleged was that Ford’s reasons pretextu- justified firing her. if Upshaw Even al. meeting This only occurred two weeks could show that Ford fired her based on a after Upshaw filed an charge mistake, or arbitrary even based on an day on the same that Robert Brooks sub- her, get desire to rid of she must do more: response. mitted Ford’s Upshaw also She must demonstrate that Ford’s real shortly notes that after she filed the pres- reason for firing was to retaliate ent lawsuit in November Brandee pursuing her for EEOC claims. Hughes-Sharp and Jim requested Brooks documentation employees regarding Resolution in Upshaw’s favor of the issues they Upshaw. When disputes the majority characterizes as asked if he “compiling was that informa- material get would us no further than tion with the view towards terminating situation presented by Upshaw’s racial Carolyn Upshaw,” Jim responded discrimination claims. majori- Under the that he “had hoped to.” In December ty’s reasoning, those claims should also 2004, the Salaried Personnel pre- office go jury, to the inasmuch Upshaw pre- as sented they the documents had accumulat- indeed, sented Ford admit- evidence— ed to Taylor, Gerald along with a recom- ted—that the company promoted white mendation that Upshaw Taylor be fired. employees who were unqualified. Al- testified that although he thought there though Ford claimed the promotions were was a “solid case” for terminating Upshaw, mistakes, jury could assume that Ford some of the e-mails that Salaried Person- lying up animus, cover its racial nel had submitted made it look like the just jury as a could assume that er- company was trying “gunny sack” her. ror in firing Upshaw was a pretext hide retaliatory its motive. We have held Viewing this light most jury may reject “[t]he not an em- favorable Upshaw, must, as we she has ployer’s explanation, however, unless provided sufficient pretext evidence of there is a sufficient basis in the evidence summary survive judgment. For one for doing so.” Manzer v. thing, Diamond Upshaw filed EEOC charges so fre- Co., Shamrock Chemicals 29 F.3d quently, nearly any action Ford took would (6th Cir.1994) (emphasis in original). relatively have been close in time to one of jury “To allow the simply to refuse to her filings. August The 2003 meeting to *18 employer’s believe the explanation would discuss “complaints” many came subtly, but inarguably, shift the burden of months before she was fired in March persuasion from the plaintiff to the defen- 2005. The most recent charge EEOC dant, which we permit.” must not Id. had prior filed to her termination was in “[Ojnce employer has come forward June 2004. And Ford did not Upshaw fire with a nondiscriminatory reason for [the until four months after she filed this law- challenged action], we hold that plain- suit. tiff produce must sufficient evidence from Moreover, Jim Tay- Gerald
which the jury may reasonably reject the lor both deposition testified on that employer’s (citations explanation.” Id. August 26 discussion was related to inter- omitted). nal complaints from and about
Upshaw points August and had nothing to do with her EEOC meeting among Brooks, Robert filings. Jim Taylor’s notes on the meeting sup- Brooks, and Taylor Gerald to discuss Up- port interpretation: this He wrote that summary judg- order district court’s daily people investigating are “almost that the human complaints” observed inment of Ford. favor facility employees Upshaw’s resources # of com- “[t]he concerns with specific
had of these time invested & outcome
plaints, if advised
investigations.” Taylor “[t]hat activity little excessive with the data reveal PUDELSKI, John J. Petitioner- up then write it for termination yield or no Appellant, if it warrants said will evaluate and I These reveal that comments release.” concerned with amount Taylor was WILSON, Respondent-Appellee. Julius de- plant’s that the human resources time No. 07-3856. expending internal inves- partment was no regarding Upshaw. There is tigations Appeals, United Court of States Taylor that meant “EEOC Sixth Circuit. “complaints,” he oth- charges” when wrote Argued: April 2009. meeting the fact this er than charges. in time to one of those close Aug. Decided and Filed: enough simply here from There Rehearing and En Banc Rehearing jury Taylor must could find Denied Oct. 2009.* activity referring protected have been by Upshaw. compiled by to the
As documentation associates, Taylor
human resources found although some of the e-mails he re- presented grievances insubstantial
ceived Upshaw, them out a most of made so, case” for her termination. Even
“solid
Ford did not fire until three later and did not cite of the
months as a report
information reason Again, dismissal. other than the that human
fact resources associates be- soliciting feedback
gan employee about shortly after her November 2004
lawsuit, there is no evidence the com- report anything of this to do
pilation filings. be able pre-
Whether would “to
vail at trial on the issue of whether Ford’s pretextu-
rationale for her termination
al,” Maj. Op. at is immaterial. Be- presented has not sufficient
cause jury from which a could find that pro- actions on reasons were based VII, Title I
hibited would affirm the * rehearing Judge Clay grant sons in his dissent. would the rea- stated