Kenneth Clack v. Rock-Tenn Company, Mill Divisi , 304 F. App'x 399 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0778n.06
Filed: December 22, 2008
07-6134
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENNETH CLACK, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ROCK-TENN COMPANY and ROCK- ) EASTERN DISTRICT OF TENNESSEE
TENN COMPANY, MILL DIVISION, )
)
Respondents-Appellees. )
Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN,* District Judge.
PER CURIAM. The plaintiff, Kenneth Clack, appeals from the order granting
summary judgment to the defendants, Rock-Tenn Company and Rock-Tenn’s Mill Division,
that was entered on Clack’s claims that his termination constituted racial discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
The magistrate judge, sitting as the district court by consent, held that Clack had
established a prima facie case of race discrimination but had failed to show that the
defendants’ purported reason for the termination, Clack’s insubordination, was a pretext for
*
The Hon. Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
07-6134
Clack v. Rock-Tenn Company
either racial or retaliatory animus. W e find no basis on which to overturn the summary
judgment order and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005, at the time of the events giving rise to this litigation, Kenneth
Clack, an African-American male, had been employed at Rock-Tenn’s Chattanooga facility
as a line worker in the company’s recycled paperboard plant since 1986. During the early
years of his employment, Clack apparently had little difficulty with the company’s
management but beginning in 1995, his relationship with his supervisors grew increasingly
contentious. According to the record, over the next decade Clack filed some 15 or more
grievances with his union steward. One or two of those complaints alleged non-specific
“harassment.” In two others, Clack made reference to a supervisor who “ha[d] a skin
problem” and complained about a racial slur, although the record does not reflect its source.
The other grievances concerned disagreements about work assignments, use of safety
equipment, scheduling difficulties, and the like. As summarized by the defendants, they do
not explicitly reflect racial hostility or animus as a basis for Clack’s complaint.
In 1998, Clack filed an EEOC complaint, and later a lawsuit, against the defendants
contending that he had been subject to racial harassment for a number of years, and in
2000, Clack and Rock-Tenn entered into a confidential agreement settling the case. In
-2-
07-6134
Clack v. Rock-Tenn Company
2003, Clack filed both a grievance with his union accusing Rock-Tenn’s general manager,
W alter Lancaster, of harassment and retaliation relating to his 1998 lawsuit and a second
EEOC complaint based on Lancaster’s alleged harassment and retaliation. There is no
indication in the record that this complaint became the subject of a lawsuit.
In November 2004, Clack filed a union grievance against his immediate supervisor,
foreman Bill Murphy, accusing him of “telling lies against [him] and mak[ing] threatening
statements to [him].” At an internal meeting in December 2004 to discuss this grievance,
Clack indicated that he believed that Murphy was retaliating against him because of his
previous EEOC complaints. In response, Lancaster told Clack that if he felt that Murphy
was harassing him, he should report it to Mike McDougal, the plant superintendent. Clack
later maintained that he was instructed to contact Mike McDougal “immediately” rather than
“wait until a break.” By contrast, Lancaster insisted that he did not state or even imply that
Clack could stop work or refuse work in order to contact McDougal.
The specific event that led to this litigation occurred on February 1, 2005. Murphy,
who was the foreman on duty, instructed Clack to clean up some debris that had fallen near
the machine Clack was working on. Clack testified that as the “filler-man” on the machine,
it was his job to feed material into the machine and keep his immediate area clean and that
the “utility man” assigned to the machine was responsible for general clean-up around the
machine. Clack also claims that the “utility man” on duty that day, Denny W ooten, was
standing nearby watching Murphy and Clack’s interaction. Clack apparently decided that
-3-
07-6134
Clack v. Rock-Tenn Company
Murphy’s instruction constituted harassment, both because he was being asked to do the
job of another employee and because earlier in the day, according to Clack, Murphy
purposefully bumped into him while walking past him. Clack therefore informed Murphy
that it was not his job to clean up the debris in question and that, in any event, he did not
have the correct machinery, a certain kind of forklift, to do the job. W hen Murphy insisted
that Clack complete the task, Clack left the area, telling Murphy that he was going to go call
McDougal. Murphy apparently instructed Clack to call his union representative instead
because Murphy had already determined that he was going to send Clack home for
insubordination. After Clack was sent home, W ooten and another employee accomplished
the clean-up task in a few minutes using implements available on the shop floor.
The day after the incident, management had a meeting with Clack to get his side of
the story. After further investigation, Lancaster fired Clack for insubordination, an action
punishable by termination even for a first offense under the terms of the prevailing collective
bargaining agreement. Lancaster said that he made the final termination decision based
on McDougal’s recommendation. Murphy, whose position as foreman was considered non-
managerial, apparently had the authority to suspend but not terminate employees. There
is no evidence in the record that Murphy was personally involved in the termination decision.
Clack filed a grievance regarding his termination and, after arbitration, was reinstated
with back pay, based on the arbitrator’s determination that there were “mitigating
circumstances” relating to Clack’s failure to follow Murphy’s directions. Subsequently, Clack
-4-
07-6134
Clack v. Rock-Tenn Company
filed the instant action claiming that his termination constituted racial discrimination and
retaliation in violation of Title VII. The district court granted summary judgment to the
defendants, holding that although the plaintiff established a prima facie case of both
discrimination and retaliation, he had not demonstrated the defendants’ stated reason for
termination – insubordination – was pretextual.
DISCUSSION
W e review a district court’s grant of summary judgment de novo. See Michigan Bell
Tel. Co. v. MFS Intelenet of Michigan, Inc., 339 F.3d 428, 433 (6th Cir. 2003). Summary
judgment is appropriate where “there is no genuine issue as to any material fact and... the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). W e must view all
evidence and any factual inferences in the light most favorable to the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Once
the moving party has sufficiently informed the district court of the basis for its motion, the
burden shifts to the non-moving party to demonstrate why summary judgment would be
inappropriate, and they must do more than simply show that there is some metaphysical
doubt as to the material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986);
Matsushita, 475 U.S. at 586. The mere existence of a scintilla of evidence in support of the
plaintiff’s position is not sufficient; rather, the plaintiff must come forward with affirmative
evidence upon which a rational jury could find for the plaintiff. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 252, 256-57 (1986).
-5-
07-6134
Clack v. Rock-Tenn Company
Race Discrimination
The plaintiff claims that his termination constituted discrimination based on his race,
in violation of 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of race
discrimination, the district court determined, under the familiar burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that the plaintiff had
established a prima facie case through circumstantial evidence. That determination is not
seriously contested on appeal. 1
The plaintiff having established a prima facie case, the burden of production then
shifted to the defendant to articulate a non-discriminatory reason or reasons for the adverse
employment action. See Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).
Rock-Tenn contends on appeal that it discharged this burden by establishing a non-
discriminatory reason for Clack’s termination – his insubordination – and that the plaintiff
cannot show that its proffered reason for the action was pretextual. In response, the plaintiff
provides a lengthy discussion of factual circumstances that he contends show pretext,
including Murphy’s alleged ongoing harassment, Murphy’s mishandling of the incident at
issue, Clack’s contention that he was not in fact insubordinate, and management’s alleged
1
On appeal, the defendants argue that one of the McDonnell Douglas prongs – that
a person outside the protected class was treated more favorably than the plaintiff or that he
was replaced by a person outside the protected class – was not proven. This contention
is based on the argument that “Rock-Tenn did not intentionally replace Plaintiff with a white
employee, but that the terms of the CBA required that the next person with seniority fill that
position and such person happened to be white.” As the magistrate judge noted, however,
the defendants provided no authority for this proposition, and we have found none.
-6-
07-6134
Clack v. Rock-Tenn Company
“historic lack of investigation” into his grievances. However, none of the evidence he offers
in support of his argument, save for one affidavit, directly addresses the issue of racial
animosity in connection with the decision to fire Clack.
The crucial affidavit is from Ted Bonine, a former foreman at Rock-Tenn who worked
with Murphy from 1999 until approximately 2002. In it, Bonine recalled observing Murphy
make racists remarks and single out black employees, including Kenneth Clack, for harsher
treatment based on race. He also indicated that the management was generally aware of
Murphy’s racism and tolerated it.2
2
The affidavit reads in relevant part:
Repeatedly throughout my employment, Mr. Murphy used offensive slurs
toward black employees, calling them “niggers” and “Black mother fuckers.”
[He] repeatedly expressed his opinion that the black employees were
generally lazy and “Good for nothing” . . . . As a general rule, Mr. Murphy would always treat
the African American employees more harshly than white employees in almost every
nuance of the job. [He] also seemed to single out Mr. Kenneth Clack for his racially based
rage. [He] was aware of the outcome of Mr. Clack’s previous lawsuit and spoke of it on
several occasions. It seemed to make him angry. On one occasion I went with Mr. Murphy
to Norcross, Georgia for training. During that trip, Mr. Murphy repeatedly spoke of Mr. Clack
on a racially offensive level. Both on the above trip and at other times, Mr. Murphy made
the comments “KC is nothing but a fucking nigger” and “I am going to get rid of him.” Mr.
Murphy also referred to Mr. Clack as a “black mother fucker.” On one occasion in 2001, Mr.
Murphy made the com ment that he was going to throw Mr. Clack in the pulper and make
him into paper. On another occasion, Mr. Murphy stated he wanted to “string him up.” I
complained to management about Murphy but to my knowledge nothing was done about
it. It was my observation, experience and belief that Murphy’s general attitude and feelings
were known throughout the facility. As a foreman, I believe that I respected all of the
employees and felt that I had a good relationship with the black employees. This made Mr.
Murphy angry and he commented that I was too friendly with the black employees. He
would also become angry when I would defend a black employee or ask him to stop his
offensive language.
-7-
07-6134
Clack v. Rock-Tenn Company
The magistrate judge disregarded the Bonine affidavit because “the statements do
not show racial animus by the decisionmaker at the relevant time.” The court reasoned that
the statements attributed to Murphy were not relevant because they were “far removed, at
least three years and possibly more, from the period immediately surrounding the events
in February 2005" and, moreover, that “[e]ven assuming that Murphy had racial animus
toward black employees and Plaintiff in particular, he was not the decisionmaker” and
“Lancaster, who was the decisionmaker, was aware of the history between Murphy and
Plaintiff and no evidence has been presented of any racial bias or comments of Lancaster.”
On appeal, the defendants ask us to go a step further and conclude not only that the
statements recounted in Bonine’s affidavit are irrelevant but also that they are time-barred
under the statute of limitations because Clack’s claim of racial discrimination is based upon
a discrete act, rather than a continuing violation. However, in National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002) the Supreme Court explicitly held that in Title
VII cases claiming a violation based on a discrete act of discrimination, a plaintiff is not
prevented from using otherwise time-barred incidents as “background evidence in support
of a timely claim.” Here, Clack is not attempting to recover based on Murphy’s past
statements but, as explicitly allowed by Morgan, is simply using them as background
evidence to prove pretext. See Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d
776, 786, n.4 (7th Cir. 2004) (“The district court concluded that because certain events cited
by Davis occurred outside the 300 days from the date he filed his . . . charge. . . they could
not be relied upon as evidence of pretext. However, the Supreme Court has made clear in
-8-
07-6134
Clack v. Rock-Tenn Company
. . . [Morgan]. . . that where, as here, the plaintiff timely alleged a discrete discriminatory act
(i.e., his termination based on his race and in retaliation for filing prior charges), acts outside
of the statutory time frame may be used to support that claim.”).
Turning to an evaluation of the statements, we have held that “[u]nless the
statements or conduct of nondecisionmakers can be imputed to the ultimate decisionmaker,
such statements or conduct can not suffice to satisfy the plaintiff’s burden of demonstrating
animus.” Noble v. Blinker Int’l., Inc., 391 F.3d 715, 724 (6th Cir. 2004) (internal quotations,
citation, and alterations omitted). Thus, “[i]n evaluating the relevancy of discriminatory
remarks” as part of a pretext analysis, “this court examines the identity of the speaker,” as
well as “the substance of the remarks.” Hopkins v. Electronic Data Sys. Corp., 196 F.3d
655, 665 (6th Cir. 1999). Moreover, we have noted in conducting such an analysis that
[a]n isolated discriminatory remark made by one with no managerial authority
over the challenged personnel decisions is not considered indicative of . . .
discrimination. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1161
(6th Cir. 1990) (“[S]tatement by an intermediate level management official is
not indicative of discrimination when the ultimate decision to discharge is
made by an upper level official.”). This court later explained, however, that
the McDonald rule was never intended to apply formalistically, and that
remarks by those who did not independently have the authority or did not
directly exercise their authority to fire the plaintiff, but who nevertheless
played a meaningful role in the decision to terminate the plaintiff, were
relevant. See Wells [v. New Cherokee Corp.], 58 F.3d [233,] 237-38 [6th Cir.
1995)]. . . . Similarly, the discriminatory rem arks of those who may have
influenced the [personnel decision] . . . may be relevant when the plaintiff
challenges the motive behind that decision.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998) (emphasis
added); see also Noble, 391 F.3d at 723 (opinions or attitudes of the non-decision-maker
-9-
07-6134
Clack v. Rock-Tenn Company
must “influence[]” or “otherwise cause” the discharge); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 141 (2000) (protected trait “must have actually played a role in
[the employer’s decisionmaking] process and had a determinative influence on the
outcome”) (internal quotations and citation omitted; alternation in original). W e have further
expounded upon the rationale behind refusing to employ a “formalistic” application of the
McDonald rule:
If we applied the rule rigidly, employers could simply create a post for the
manager in charge of firing employees and isolate that person so that he or
she never met the unlucky employees. Supervisors with no official authority
to discharge would effectively make firing decisions before informing this
manager, who would then act on the decisions, and the employer would not
be liable even if the supervisors admitted discrimination. Companies may not
so easily insulate themselves from liability for discriminatory discharges.
Wells, 58 F.3d at 238; see also Arendale v. City of Memphis, 519 F.3d 587, 604 n. 13 (6th
Cir. 2008) (“W hen an adverse hiring decision is made by a supervisor who lacks
impermissible bias, but that supervisor was influenced by another individual who was
motivated by such bias, this court has held that the employer may be held liable under a
“rubber-stamp” or “cat’s paw” theory of liability. . . . [T]he term ‘cat’s paw’ refers to one used
by another to accomplish his purposes.”) (internal quotations and citations omitted). In sum,
“[i]f the comments were made by a person in a position to influence the alleged employment
decision, they will be relevant unless they are so isolated and ambiguous as to be
nonprobative.” Hopkins, 196 F.3d at 665. The timing of any remarks, specifically how
remote in time they were to the employment action at issue, also has bearing on their
- 10 -
07-6134
Clack v. Rock-Tenn Company
relevance. See Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (discounting
allegedly ageist comments made by plaintiff’s supervisors that were “remote in time.”)
In this case, the substance of Murphy’s remarks and purported actions are certainly
indicative of animus based on race. As the defendants appear to concede on appeal, the
objectionable statements are not isolated nor ambiguous. Moreover, we are not convinced
that the district court was correct in holding that the time lag here was dispositive. Even
though Bonine observed Murphy’s behavior approximately three years prior to Clack’s
termination, viewing the record in a the light most favorable to the plaintiff, we find nothing
to suggest that such a significant level of racial hostility would have been dispelled merely
by the passage of time.
The more pertinent question is whether Murphy’s racist attitude “influenced” or
“otherwise caused” the undisputed decision maker, Lancaster, to terminate Clack. Although
Clack asserts in his brief that Murphy had “significant involvement in the decision to
terminate Appellant,” there is not much in the record to support this statement. There is no
indication on the record that Murphy was included in discussions regarding the termination
or had any kind of say in the ultimate decision. It is undisputed, as the plaintiff points out,
that Murphy filed a written report on the incident that was given to management, but it is
also undisputed that management held a meeting in which Clack was given the opportunity
to present his side of the story and that Lancaster made the decision to terminate the
plaintiff only after hearing his version of events at this meeting. Moreover, Lancaster
- 11 -
07-6134
Clack v. Rock-Tenn Company
explained that in his opinion, unlike being instructed to do something far outside of his job
description, such as cleaning the toilets, the job of cleaning the debris near the machine
was sufficiently within Clack’s job responsibility that it was insubordinate not to comply with
Murphy’s direction and, instead, walk off the floor to call McDougal. Lancaster took the not
unreasonable position that Clack should have completed the task as instructed and raised
the issue with McDougal at a later point, if necessary.
The record suggests that Rock-Tenn’s upper management knew of animosity
between Clack and Murphy and may have known that Murphy had made hostile, racist
comments about Clack, if not directly to him. That knowledge alone is not sufficient per se
to support the conclusion that Murphy influenced Lancaster’s ultimate decision to terminate
Clack’s employment. Lancaster’s testimony regarding his reasoning for the termination
indicates that Lancaster engaged in an independent investigation and made a decision
based on that investigation. A number of cases from this court suggest that this is enough
to sterilize the termination from the taint of Murphy’s racial animus. In Wilson v. Stroh
Companies, Inc., 952 F.2d 942, 946 (6th Cir. 1992), for example, we held that a direct
supervisor’s racial animus could not be imputed to a manager who made the ultimate
termination decision when the supervisor reported the incident in question but the
termination decision was based on management’s independent investigation. Likewise,
Murphy’s role in this case appears to be limited to reporting the incident, permitting
Lancaster to form his own conclusions after hearing Clack’s version of events.
- 12 -
07-6134
Clack v. Rock-Tenn Company
Clack cites Ercegovitch v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.
1998), in support of his argument that Murphy’s racial bias should be imputed to higher-ups
in the company. That case, however, is distinguishable on its facts. In Ercegovitch, several
individuals occupying high positions in Goodyear’s hierarchy, including the vice president
overseeing the entire division at issue, had made ageist remarks. W e found that there was
a material question of fact regarding whether the vice president, who was “involved in some
parts of the discussion” regarding the adverse employment action was “in a position to
influence” the decision. Id. at 355. W e also found that the vice president was “in a position
to shape the attitudes, policies, and decisions of the division’s managers” including the
ultimate decision makers, and moreover, that ageist comments by several other members
of senior management suggested the possibility of a “discriminatory atmosphere at the
defendant’s workplace” that could “in turn . . . serve as circumstantial evidence of
individualized discrimination directed at the plaintiff.” Id. at 355-56. In the case at hand, by
contrast, there is no indication that Murphy held an analogous position of influence or that
he took part in any discussions regarding the termination decision, nor did Clack offer
evidence that members of upper management had made racist comments sufficient to
create an inference of an overall “discriminatory atmosphere” emanating from the top.
Finally, we conclude that the magistrate judge did not err in rejecting Clack’s claim
that he was not actually insubordinate but rather was simply doing what he was told, i.e.,
attempting to contact McDougal if he felt harassed. As we have previously explained, “so
long as the employer honestly believed in the proffered reason given for its employment
- 13 -
07-6134
Clack v. Rock-Tenn Company
action” and that honest belief is “reasonably grounded on particularized facts that were
before it at the time of the employment action,” a plaintiff “cannot establish pretext even if
the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.”
Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). Of course, a purported error
“too obvious to be unintentional” may indicate pretext. Fischbach v. District of Columbia
Dept. of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). Nevertheless, “arguing about
the accuracy of the employer’s assessment is [merely] a distraction because the question
is not whether the employer’s reasons for a decision are right but whether the employer’s
description of its reasons is honest.” Smith, 155 F.3d at 806 (internal quotations and
citation omitted). Here, although there may be some room to argue that Clack’s actions
were not insubordinate, a conclusion later reached in hindsight by the arbitrator, Lancaster’s
conclusion that Clack was insubordinate in leaving his station to call McDougal, rather than
performing the assigned task before contacting McDougal, is certainly not “obvious” error,
and there is nothing in the record to suggest discriminatory intent on Lancaster’s part. As
for Clack’s assertion that he was told to call McDougal immediately if he felt harassed by
Murphy, the facts viewed in the light most favorable to the plaintiff suggest at most that
there was a misunderstanding between Lancaster and Clack regarding whether he could
stop work to m ake such a call or, on the contrary, whether he should wait for a more
appropriate time, especially given that Murphy’s direction was not unreasonable. In any
event, Lancaster’s interpretation of the facts that he drew from his investigation of the
incident is not so irrational or obviously erroneous that one must conclude that it is
- 14 -
07-6134
Clack v. Rock-Tenn Company
dishonest. Even the arbitrator noted that the “best path” for Clack to have followed would
have been to “comply and grieve later.”
Retaliation
For the same reason that Clack cannot establish that his termination was the result
of racial discrimination, he has also failed to establish that he was fired in retaliation for
activity protected by Title VII, 42 U.S.C. § 2000e-3(a). In the absence of any direct evidence
of retaliation, Clack initially presented circumstantial evidence to establish a prima facie
case of retaliation through the McDonnell Douglas burden-shifting framework. After a
detailed analysis of the facts, the district court noted the tem poral proximity between a
December 2004 meeting held to discuss the merits of a formal grievance that Clack had
filed in November 2004 and his eventual termination in February 2005 on other grounds,
and held that the relatively short period of two months was sufficient to establish a prima
facie case of retaliation.
Nevertheless, as with his claim of racial discrimination under the McDonnell Douglas
framework, once the plaintiff established a prima facie case, the defendants could and did
provide a non-discriminatory reason for Clack’s termination, thereby refuting the charge of
retaliation. It was then up to the plaintiff to show that the basis for the adverse employment
decision was merely a pretext for retaliation. See Balmer v. HCA, Inc., 423 F.3d 606, 614
(6th Cir. 2005). The district court determined that the plaintiff had failed to establish pretext,
- 15 -
07-6134
Clack v. Rock-Tenn Company
and we agree with this conclusion. On appeal, Clack does not distinguish the evidence
proffered to establish pretext for racial discrimination from that he now relies upon to show
pretext for retaliation. Specifically, he reiterates a number of factual circumstances,
including – as we previously noted – Murphy’s alleged ongoing harassment, Murphy’s
mishandling of the incident at issue, Clack’s contention that he was not in fact
insubordinate, and management’s alleged “historic lack of investigation” into his grievances.
As with his racial discrimination claim, however, the flaw in Clack’s argument is that only
a few pieces of evidence arguably relate directly to the alleged retaliation, and that proof is
much less substantial and less relevant than the evidence of racial animus reflected in the
Bonine affidavit.
There is scant other evidence of retaliatory motive unrelated to Murphy. For
example, an affidavit from union representative Danelle Rogers indicates that, after Clack
was terminated, “Murphy seemed very happy,” that “[h]is reaction was not consistent with
a regular termination,” and that Murphy stated that he had “finally got rid of [Clack].”
Another Rock-Tenn employee, Tommy Earvin, echoed Rogers’s observation, repeating in
an affidavit Murphy’s statements “I got the hammer” and “I got him,” referring to Clack. But,
as noted above, Murphy was not the Rock-Tenn employee in a position to take retaliatory
action against Clack, at least not in the form of ordering his termination. That person was
Lancaster, and although the plaintiff points out that Lancaster admitted in his deposition that
Clack’s filing of an earlier grievance against him “bother[ed]” him, this admission, standing
alone, is insufficient to establish retaliation by Lancaster by more than a mere scintilla of
- 16 -
07-6134
Clack v. Rock-Tenn Company
evidence. It is clearly not sufficient to take the issue to a jury. Anderson, 477 U.S. at
256-57.
CONCLUSION
For the reasons set out above, we AFFIRM the district court’s grant of summary
judgment.
- 17 -
07-6134
Clack v. Rock-Tenn Company
KAREN NELSON MOORE, Circuit Judge, dissenting. The majority holds that
Rock-Tenn provided a legitimate, non-discriminatory reason for its termination of Kenneth
Clack—insubordination—which Clack did not show to be pretextual. Specifically, the
majority concludes that the racial animus of Clack’s direct supervisor, Bill Murphy, who
reported the incident in question, should not be imputed to the upper-level manager who
made the ultimate termination decision because that decision was based on management’s
independent investigation into the incident. I believe that this investigation was insufficient
to sterilize the termination decision from the taint of Murphy’s racial animus because it failed
to consider what role Murphy’s racial animus may have played in the incident. Accordingly,
I respectfully dissent.
“[W ]hen a plaintiff challenges his termination as motivated by a supervisor’s
discriminatory animus, he must offer evidence of a ‘causal nexus’ between the ultimate
decisionmaker’s decision to terminate the plaintiff and the supervisor’s discriminatory
animus.” Madden v. Chattanooga City Wide Serv. Dep’t, --- F.3d ---, No. 08-5082, 2008 W L
4977335, at *9 (6th Cir. Nov. 25, 2008). If the plaintiff can show that “the supervisor’s racial
animus was the cause of the termination or somehow influenced the ultimate
decisionmaker,” such that the ultimate decision maker “‘acted as the conduit of [the
supervisor’s] prejudice—his cat’s paw—the innocence of [the ultimate decisionmaker] would
not spare the company from liability.’” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 877
(6th Cir. 2001) (quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)).
- 18 -
07-6134
Clack v. Rock-Tenn Company
The majority contends that the investigation conducted by Rock-Tenn management
was sufficient to break the causal chain between Murphy’s racial animus and the ultimate
decision by Rock-Tenn’s general manager, W alter Lancaster, to terminate Clack. Although
the record indicates that Lancaster based his termination decision on that investigation, an
independent investigation is not always sufficient to absolve an employer of Title VII liability.
In Wilson v. Stroh Companies, 952 F.2d 942, 946 (6th Cir. 1992), we held that a direct
supervisor’s racial animus could not be imputed to the ultimate decisionmakers when the
termination decision was based on an independent investigation, coupled with a lack of
evidence that the supervisor had failed to report similar misconduct by white employees and
a lack of evidence that the ultimate decisionmakers had relied on a false record created by
the supervisor. By contrast, in Madden we held that the racial animus of a supervisor could
be imputed to the ultimate decisionmakers, notwithstanding the fact of an independent
investigation, when there was evidence that the supervisor did not report similar misconduct
by white employees. 2008 W L 4977335, at *9-10. Thus, although the fact of an
independent investigation is an important factor, it is not always sufficient to break the
causal chain between a supervisor’s racial animus and the ultimate decisionmaker’s
decision to terminate the employee.
I do not believe that the investigation conducted here was sufficient to sterilize the
termination from the taint of Murphy’s racial animus. The investigation consisted of (1) an
initial meeting of the plant superintendent, Mike McDougal, with Clack and union
representatives, and (2) a follow-up meeting of Lancaster with Clack, Murphy, and various
- 19 -
07-6134
Clack v. Rock-Tenn Company
superintendents and union representatives. Although McDougal and Lancaster gave Clack
an opportunity to present his version of the events surrounding his alleged insubordination,
nothing in the record suggests that McDougal or Lancaster investigated the possible role
that Murphy’s discriminatory animus may have played in the incident. Given Clack’s
contention that he was essentially framed or set up by Murphy and the inference that
McDougal and Lancaster knew of Murphy’s racial animus, I believe that the investigation
conducted here was severely deficient.
Taking the facts in the light most favorable to Clack and drawing reasonable
inferences in his favor, we must assume that McDougal and Lancaster knew about
Murphy’s racist remarks, his discriminatory treatment of African-American employees, and
his hostility toward Clack in particular. The affidavit of Ted Bonine, a former foreman at
Rock-Tenn who worked with Murphy between 1999 and 2002, detailed a series of racist
remarks by Murphy, some of which were specifically directed at Clack. Bonine stated that
he had “complained to management about Murphy but to my knowledge nothing was done
about it.” J.A. at 367 (Bonine Aff. at 2). Bonine further stated that “[i]t was my observation,
experience and belief that Murphy’s general attitude and feelings were known throughout
the facility.” Id.
Because we must assume that McDougal and Lancaster had knowledge of Murphy’s
racial animus, they had reason to suspect that Murphy’s racist motives could have played
a role in the incident for which Clack was fired. At the very least, they had reason to
- 20 -
07-6134
Clack v. Rock-Tenn Company
suspect that there were additional relevant facts surrounding the incident beyond Clack’s
allegedly insubordinate conduct. However, the investigation conducted by McDougal and
Lancaster did nothing to probe what role Murphy’s racial animus might have played in the
events in question. Instead, they conducted an investigation with blinders on, narrowly
focused on the details of Clack’s conduct. During the meeting of McDougal with Clack and
union representatives on February 2, 2005, for instance, McDougal never inquired into what
role, if any, Murphy’s racial animus may have played in the incident. See J.A. at 133-63
(Meeting Tr.). Not surprisingly given the limited focus of the investigation, Lancaster’s
explanation of his decision to terminate Clack had a similarly narrow focus on Clack’s
alleged misconduct, without any discussion of the potential role of Murphy’s racism. As
Lancaster stated at his deposition, Clack “was directed to do a cleanup job and he refused
to do it . . . . I saw that as a violation of our general regulations and discharged him.” J.A.
at 464 (Lancaster Tr. at 72).
Of course, an independent investigation could have absolved Rock-Tenn of Title VII
liability. W hen faced with the conflicting stories of two em ployees, “there is probably no
practical step an employer can take beyond independently investigating the misconduct
charges that will reduce the chances of an employee’s racism influencing its behavior.”
Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 920 (7th Cir.), cert. denied, 128 S. Ct.
357 (2007). However, I believe that the type of narrowly focused investigation conducted
here is insufficient in this context. W hen an ultimate decisionmaker has knowledge of a
supervisor’s racial animus and that supervisor reports an employee in the protected class
- 21 -
07-6134
Clack v. Rock-Tenn Company
leading to his termination, management’s investigation should not focus only on the
employee’s alleged misconduct. Instead, management should broaden the scope of the
investigation to consider what role, if any, the supervisor’s racial animus may have played
in the events in question. I believe that this approach effectively balances competing
concerns. On the one hand, it takes seriously the allegations of employees such as Clack
who say they were framed for misconduct by racist coworkers or supervisors. At the same
time, it is not too demanding of employers, requiring only that they conduct a meaningful
and fair-minded investigation that at least considers the possibility that the known
discriminatory animus of the supervisor played a role in the disputed events.
Because the investigation by Rock-Tenn management failed to investigate or
consider whether Murphy’s racial animus played a role in the incident in question, I believe
that it was insufficient to sterilize Lancaster’s decision to terminate Clack from the taint of
Murphy’s discriminatory animus. Accordingly, I believe that Clack sufficiently showed that
the proferred reason for his termination was pretextual and that his case should have been
submitted to a jury. For the foregoing reasons, I would reverse the district court’s grant of
summary judgment in favor of Rock-Tenn on the discrimination claim and therefore
respectfully dissent.
- 22 -