Ahmad T. Rafee v. Volvo Group N. Am., LLC ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0223n.06
No. 21-5891
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 03, 2022
DEBORAH S. HUNT, Clerk
)
AHMAD T. RAFEE,
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
VOLVO GROUP NORTH AMERICA, ) TENNESSEE
LLC, a Delaware limited liability )
company, ) OPINION
Defendant-Appellee. )
)
Before: MOORE, STRANCH, and LARSEN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. This case concerns a claim of unlawful
employment discrimination under the Age Discrimination in Employment Act (ADEA). In May
2019, Volvo received allegations that Ahmad Rafee, a 66-year-old Team Leader, yelled and cursed
at a member of his team. Following an investigation, Volvo concluded that Rafee engaged in the
accused conduct in violation of company policy and terminated him. Rafee sued Volvo, asserting
that it unlawfully discriminated against him because of his age. The district court granted summary
judgment to Volvo, concluding that no reasonable jury could find that Volvo’s proffered reason
for his termination was pretextual. Because the district court did not err, we AFFIRM.
I. BACKGROUND
A. Factual Background
Volvo hired Rafee as a Warehouse Operator in its Byhalia, Mississippi facility on
November 16, 2015, when he was 63-years old. As Warehouse Operator, he was represented by
No. 21-5891, Rafee v. Volvo Group North America, LLC
a union. Volvo later promoted Rafee to Team Leader, an at-will, supervisory position, which he
held until his termination.
In May 2019, Volvo allegedly received a complaint that Rafee was aggressive with and
screamed at Karmyko Brock, a member of his team. Michael Johnson, a Service Market Logistics
Manager, and Sheryl Freeman, the Human Resources Manager, led Volvo’s investigation into the
allegations.
As part of the investigation, Johnson interviewed three uninvolved bystanders as witnesses:
Angela Hardaway, Carolyn Humphreys, and Denise Glass. Freeman and Johnson also jointly
interviewed Brock and Rafee, the two individuals alleged to be involved in the altercation. The
three uninvolved witnesses, according to Johnson, provided consistent accounts of what transpired:
Brock failed to complete a task assigned to him, and when Brock tried to explain what happened,
Rafee became combative and screamed at him using profanity. Some of the employees also
explained that Rafee’s use of vulgar and profane language was not uncommon; indeed, most
employees seemed unphased by it, explaining that “[t]hat’s just how Mr. A is, he really didn’t
mean anything by it.” Following the interviews, Johnson also obtained written statements from
each of the three witnesses.
During Brock’s interview, according to Johnson, Brock neither confirmed nor denied the
allegations but instead dismissed them, explaining, “that’s just Mr. A.” Rafee, on the other hand,
completely denied that the incident occurred and claimed that he would never use profanity with
his subordinate coworker.
Following the interviews and faced with conflicting accounts, Johnson and Freeman
concluded that Brock was downplaying the incident and decided that the accounts of the three
uninvolved witnesses were more credible. As a result, they found that Rafee’s conduct violated
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Volvo’s Code of Conduct, Harassment Policy, and Workplace Violence Policy, and terminated
him for violations of those policies around May 21, 2019.
B. Procedural Background
Rafee sued Volvo, claiming that his termination amounted to unlawful age discrimination
in violation of the ADEA. Volvo timely moved for summary judgment before the district court,
contending that Rafee could not establish pretext because it held an honest belief in its reason for
terminating him.
The district court granted summary judgment to Volvo on the ADEA claim. Based on the
record, the court found that Volvo’s investigation into Rafee’s conduct was “reasonably informed
and considered”: the “investigation included interviewing three uninvolved individuals regarding
the alleged incident, interviewing Brock and Rafee, speaking to other employees about Rafee’s
conduct more generally, and personally observing Rafee’s use of profanity and counseling Rafee
about his communication with other employees.” Volvo, the district court reasoned, was therefore
within its rights to rely on that investigation to support an honest belief that Rafee’s misconduct
occurred. Rafee, for his part, failed to present any evidence regarding improprieties in the
investigation or showing that Volvo’s decision was not reasonably informed to rebut Volvo’s
honest belief and create a dispute of material fact. Accordingly, the court concluded that Rafee
failed to show that a reasonable jury could find that Volvo’s proffered reason for his termination
was a pretext for age discrimination. The district court also found that Rafee failed to proffer any
evidence to demonstrate that age was ultimately the but-for cause of his termination. The district
court granted summary judgment to Volvo, and this appeal followed.
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II. ANALYSIS
On appeal, Rafee asserts that the district court erred in granting summary judgment to
Volvo because it made determinations as to witness credibility and improperly drew inferences
against him. He argues that the record contains several disputes of material fact concerning
pretext, pointing to: questions about who made the initial complaint to Volvo, conflicting
statements made during Volvo’s investigation into the allegations, and Volvo’s shifting rationales
for his termination. Rafee, moreover, contends that the record supports a triable issue over whether
age was the but-for cause of his termination.
We review de novo the court’s grant of summary judgment. Wilson v. Gregory, 3 F.4th
844, 855 (6th Cir. 2021). Volvo is entitled to summary judgment if it can show “the absence of a
genuine dispute of material fact as to at least one essential element” of each claim for which it
seeks judgment. Troutman v. Louisville Metro. Dep’t of Corr., 979 F.3d 472, 481 (6th Cir. 2020)
(quoting Romans v. Mich. Dep’t of Hum. Servs, 668 F.3d 826, 835 (6th Cir. 2012)). In our analysis,
we draw all reasonable inferences in favor of the non-moving party—Rafee. Wilson, 3 F.4th at
855.
The ADEA prohibits employers from taking an adverse employment action “against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs seeking relief under the
ADEA may present either direct or circumstantial evidence to establish a violation. Provenzano
v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011).
Rafee deploys the circumstantial evidence method, which invokes the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
that framework, a plaintiff must first establish a prima facie case of discrimination by showing:
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“(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment
action; (3) he or she was qualified for the position; and (4) he or she was . . . treated differently
than similarly-situated, non-protected employees.” Wright v. Murray Guard, Inc., 455 F.3d 702,
707 (6th Cir. 2006) (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)). “[T]he prima
facie case ‘raises an inference of discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of impermissible factors.’
Establishment of the prima facie case in effect creates a presumption that the employer unlawfully
discriminated against the employee.” Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 254 (1981)
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). If the employee meets this
burden, the employer must respond by articulating “some legitimate, nondiscriminatory reason”
for the adverse employment action at issue. McDonnell Douglas Corp., 411 U.S. at 802. The
burden then shifts back to the employee to rebut the “proffered reason by proving that it was pretext
designed to mask discrimination.” Provenzano, 663 F.3d at 812. At this stage, our precedent
instructs that a plaintiff “may, but will not necessarily” need to provide additional evidence beyond
the prima facie case to survive summary judgment. Blair v. Henry Filters, Inc., 505 F.3d 517, 533
(6th Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Savs., Inc., 557 U.S. 167, 180
(2009). But, in any case, “the ultimate burden of persuasion remains on the plaintiff to demonstrate
that age was the ‘but-for’ cause of their employer’s adverse action.” Provenzano, 663 F.3d at 812.
The parties do not dispute that Rafee established a prima facie case of discrimination—the
first stage of the framework—or that Volvo’s proffered legitimate and nondiscriminatory reason
for Rafee’s termination was his altercation with his subordinate, during which he allegedly used
profane, harassing, and threatening language—the second stage. The parties diverge at the third:
whether Volvo’s proffered reason for terminating Rafee was pretext for age discrimination.
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To survive a motion for summary judgment at the pretext stage, Rafee need only prove
“enough to create a genuine issue as to whether the rationale is pretextual.” Whitfield v. Tennessee,
639 F.3d 253, 260 (6th Cir. 2011) (alteration in original). There are a number of ways to establish
an inference of pretext to defeat summary judgment. Traditionally, plaintiffs do so “by showing
that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick
Co., 231 F.3d 1016, 1021 (6th Cir. 2000). No matter the method, the evidence must create an
inference that the reason proffered for termination was really a mask for discrimination.
Rafee attempts to establish an inference of pretext by asserting that Volvo’s proffered
reason has no basis in fact and that Volvo’s proffered reason did not actually motivate his
termination. He argues that the district court erred in finding that no disputes of material fact exist
regarding either method of establishing pretext. We address these arguments in turn.
A. No Basis in Fact
With respect to the first category, Rafee chiefly takes issue with the district court’s
conclusion that Volvo had an “honest belief” in its nondiscriminatory reason for terminating him.
“[A] pretext argument falling into the first category . . . may be defeated by conclusive evidence
that the defendant ‘honestly believed’ its proffered reason, and that the belief was reasonably based
on ‘particularized facts that were before it at the time the decision was made.’” Briggs v. Univ. of
Cincinnati, 11 F.4th 498, 515 (6th Cir. 2021) (quoting Clay v. United Parcel Serv., Inc., 501 F.3d
695, 714 (6th Cir. 2007)). In other words, “the honest-belief rule gives a defendant the opportunity
to rebut a plaintiff’s third-step argument that the defendant’s proffered reason for the adverse
action lacks a basis in fact and is therefore pretextual.” Id. If an employer shows that it “made a
reasonably informed and considered decision before taking an adverse employment action, . . . the
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employee has the opportunity to produce proof to the contrary.” Ferrari v. Ford Motor Co., 826
F.3d 885, 896 (6th Cir. 2016) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)),
abrogated on other grounds by Babb v. Maryville Anesthesiologists, P.C., 942 F.3d 308, 319 (6th
Cir. 2019)
The undisputed facts of the record show that Volvo conducted a reasonable investigation
into the allegations. As the district court noted, Volvo spoke to potential witnesses, collected
statements, and drew from the investigators’ own experiences with Rafee—that he was often
aggressive and had used profanity in the workplace—to conclude that Rafee likely engaged in the
alleged conduct. As a result of the investigation, Volvo determined that while acting in his position
of Team Leader—an at-will, supervisory position—Rafee violated company policy which led to
his termination. The record shows that Volvo conducted a reasonably diligent inquiry into the
reported allegations, which allows Volvo to rely on the facts from its investigation to support its
honest belief. See, e.g., Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012).
Rafee contends that the investigation resulted in triable issues regarding pretext. He asserts
two primary concerns with the investigation—that Volvo improperly chose to rely on the accounts
of the three uninvolved witnesses over the different stories of Rafee and Brock, and that Volvo
refused to disclose (or does not know) who made the initial complaint (suggesting that no one ever
made a complaint). We turn to those arguments.
Rafee first faults the district court for improperly making a “credibility determination”
concerning Volvo’s decision to believe the accounts of the three witnesses over those of Rafee and
Brock. But the district court assessed only whether Volvo’s determination of credibility in the
course of its investigation was supported by the factual record, as part of its analysis of Volvo’s
honest belief argument. And, as discussed above, employers may make determinations based on
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the information uncovered by a sufficiently diligent investigation. “That [Rafee] or the court might
have come to a different conclusion if they had conducted the investigation is immaterial.” Seeger
v. Cincinnati Bell Tel. Co., 681 F.3d 274, 287 (6th Cir. 2012). It is true that a plaintiff equipped
with evidence of improprieties showing that an investigation was deficient can preclude summary
judgment. See Babb, 942 F.3d at 322–23; see also Shazor v. Prof. Transit Mgmt., 744 F.3d 948,
961 (6th Cir. 2014) (concluding that employer’s investigation into alleged misconduct that
consisted of speaking with one person without establishing “sufficient particularized
facts . . . failed to establish a foundation for the honest belief doctrine to apply”). But because
Rafee has not pointed to any such evidence, his argument does not cast doubt on Volvo’s honest
belief that Rafee engaged in the alleged conduct.
As to Rafee’s argument disputing the existence of an initial complaint, Rafee does not point
to any evidence to show a factual dispute over the issue, nor does he explain how such a fact, even
if in dispute, is material to establishing pretext. Indeed, it is undisputed that multiple witnesses
corroborated the allegations, and, in any case, Volvo’s policy expressly allows for anonymous
reports. Rafee “must put forth evidence which demonstrates that the employer did not ‘honestly
believe’ in the proffered non-discriminatory reason for its adverse employment action.” Blizzard
v. Marion Tech. Coll., 698 F.3d 275, 286 (6th Cir. 2012) (quoting Braithwaite v. Timken Co., 258
F.3d 488, 494 (6th Cir. 2001)). But Rafee has not shown how this missing piece of information
raises an impropriety in Volvo’s investigation. His argument, instead, amounts to a “bare assertion
that the employer’s proffered reason has no basis in fact” which “is insufficient to call an
employer’s honest belief into question, and fails to create a genuine issue of material fact.” Seeger,
681 F.3d at 285 (quoting Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 791 (6th Cir.
2006)).
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Rafee’s arguments thus fail to raise a triable issue over whether Volvo’s decisional process
is “unworthy of credence” and do not defeat Volvo’s reliance on its honest belief that Rafee
engaged in misconduct. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1082 (6th Cir.
1994) (quoting Burdine, 450 U.S. at 256), abrogated on other grounds by Gross, 557 U.S. at 180.
B. True Motivation
Rafee next suggests that Volvo’s proffered reason for terminating him was not the true
motivation behind his termination because the record shows that Volvo shifted its reasons for his
termination. In general, “[s]hifting justifications over time calls the credibility of those
justifications into question.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002);
see also Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 541 (6th Cir. 2014).
The facts in Cicero illustrate this rule. When employer Borg-Warner fired employee,
Cicero, it had “never said [it] discharged [him] for poor work performance.” Cicero, 280 F.3d at
592. After suit was filed, “[i]n answering interrogatories, Borg-Warner for the first time said it
fired Cicero because of poor performance.” Id. During depositions, however, the manager
explained that Cicero was fired because Borg-Warner fired his entire team for “fail[ing] to sell the
Romulus facility as planned.” Id. As it turned out, “Borg-Warner, . . . did not fire all of
the . . . team members.” Id. At summary judgment, the employer “again shifted its position,”
claiming that it did not fire Cicero’s entire team, but “only those members who dealt with the
company’s headquarters in Chicago.” Id. We concluded that “[w]hen the justification for an
adverse employment action changes during litigation, that inconsistency raises an issue whether
the proffered reason truly motivated the defendants’ decision.” Id.-9-
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Rafee explains that Volvo improperly shifted its reasons as follows:
During the EEOC process it was clearly the incident involving Mr. Brock [that
motivated his termination]. In fact, the Appellee clearly told the EEOC that Mr.
Brock was the individual who made the initial complaint against the Appellant.
However, when it came time to file the motion for summary judgment . . . , this
rationale morphed into a series of unreported violent outburst[s] on the part of the
Appellant. It is worth noting that some of these alleged incidents were claimed to
have been witnessed by Mr. Johnson who did not see any need to mention them
until some two years after the termination of the Appellant.
(Appellant Br. at 24–25)
But here, unlike in Cicero, Volvo’s reason for terminating Rafee has remained consistent
over time and over the course of this litigation: Rafee was fired due to his altercation with Brock.
Rafee’s explanation does not amount to a material departure that would call into question Volvo’s
motivation. Indeed, the additional conduct that Rafee contends motivated the termination (and
amounted to a departure from the initially proffered reason) is not determinative because
“additional, non-discriminatory reasons that do not conflict with the one stated at the time of
discharge does not constitute shifting justifications.” Pelcha v. MW Bancorp, Inc., 988 F.3d 318,
328 (6th Cir. 2021) (quoting Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 891 (6th Cir.
2020)). It is also unclear whether Volvo relied on that additional information as part of its
reasoning for terminating Rafee—as Rafee suggests—or whether it relied on that information to
corroborate the allegations that ultimately led to Rafee’s termination—as Volvo asserts. On this
record Rafee has failed to raise a genuine dispute of material fact that calls into question Volvo’s
proffered reason for terminating him.
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Because Rafee has not established that Volvo’s proffered reason for his termination was a
pretext for age discrimination, the district court did not err in granting summary judgment to
Volvo.
III. CONCLUSION
In light of the foregoing, we AFFIRM the district court’s judgment.
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