Joostberns v. United Parcel Services ( 2006 )


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  •                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0019n.06
    Filed: January 9, 2006
    No. 04-2370
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    RANDY JOOSTBERNS,
    Plaintiff-Appellant,
    v.                                                               ON APPEAL FROM THE UNITED
    STATES DISTRICT COURT FOR THE
    UNITED PARCEL SERVICES, INC.,                                    WESTERN DISTRICT OF MICHIGAN
    Defendant-Appellee.
    /
    BEFORE:           CLAY and COOK, Circuit Judges; OLIVER, District Court Judge.*
    CLAY, Circuit Judge. Plaintiff Randy Joostberns appeals an October 6, 2004 order of the
    district court granting Defendant United Parcel Service, Inc.’s (“UPS”) motion for summary
    judgment and dismissing Plaintiff’s claims against UPS under the Family and Medical Leave Act
    (“FMLA”), the Americans with Disabilities Act (“ADA”), and Michigan’s Persons With Disabilities
    Civil Rights Act (“PWDCRA”). For the reasons set forth below, we AFFIRM the order of the
    district court.
    I.
    BACKGROUND
    *
    The Honorable Solomon Oliver, Jr., United States District Court Judge for the Northern District of Ohio, sitting
    by designation.
    No. 04-2370
    A.       Procedural History
    On July 24, 2003, Plaintiff Randy Joostberns filed a complaint in the United States District
    Court for the Western District of Michigan alleging that Defendant UPS terminated him in violation
    of the FMLA, ADA and Michigan PWDCRA. Plaintiff subsequently filed an amended version of
    his complaint. Thereafter, on July 14, 2004 Defendant moved for summary judgment. In response,
    Plaintiff submitted a brief with exhibits. The exhibits included an affidavit from UPS employee
    Patrick Frost. Defendants then moved to strike the affidavit of Patrick Frost attached to Plaintiff’s
    brief.     Plaintiff responded, and on September 27, 2004 the district court held a hearing on
    Defendant’s motions for summary judgment and to strike the Frost Affidavit. On October 6, 2004,
    the district court granted Defendant’s motion for summary judgment on all of Plaintiff’s claims and
    denied Defendant’s motion to strike as moot. Plaintiff timely filed a notice of appeal on November
    2, 2004.
    B.       Substantive Facts
    Plaintiff Randy Joostberns began working as a truck washer for UPS in 1984 while attending
    community college. After graduating, Plaintiff became a truck loader, and in 1986 he became a
    truck driver. Plaintiff remained a driver until May of 2001.
    In 1999, however, Plaintiff began to experience family and personal problems that required
    him to take significant amounts of leave. Plaintiff’s daughter, Jennifer, was diagnosed with
    depression and anorexia nervosa. She was hospitalized in April of 1999 and thereafter remained in
    2
    No. 04-2370
    outpatient care for one month. Plaintiff took time off work to participate in Jennifer’s treatment,
    which included individual and family therapy.
    Jennifer’s health did not improve, and in 2001 she twice attempted suicide. Her first attempt
    occurred in early 2001. Following the attempt, Jennifer was placed in a treatment center in Arizona.
    Plaintiff took one week off work to visit Jennifer in Arizona. Her second attempted suicide occurred
    soon after she returned from Arizona. After her second attempt, Jennifer was placed in a facility in
    Wisconsin.
    Due to Jennifer’s mental health problems, Plaintiff developed severe depression. According
    to Plaintiff, his depression caused him to forget assignments and become lost and confused while
    driving. Consequently, Plaintiff applied for leave under the FMLA. Defendant UPS granted
    Plaintiff’s leave, and Plaintiff left work at UPS for treatment in early May 2001.
    Plaintiff returned to work in early July 2001. He informed his supervisors that his
    prescription medication contained a warning label advising persons not to operate heavy machinery
    while medicated. His supervisors placed him at the UPS customer counter and did not reinstate him
    to his former position as a driver.    According to UPS management and supervisors, Plaintiff
    requested the customer counter position. Plaintiff denies making this request.
    On or before July 2, 2001, Chris Smith, a UPS employee, received a tip that Plaintiff was
    shipping packages without paying for them. Smith passed this information on to Philip Siegel in
    UPS’s security department. Siegel recorded notes from his conversation with Smith in his planner
    and thereafter investigated the tipster’s allegations. By looking at tracking information in the UPS
    system, Siegel determined that there was no record of payment for six packages shipped to
    3
    No. 04-2370
    Wisconsin. Siegel did not print out the tracking information, but copied the information into his
    investigation report. Subsequently, Siegel discarded the notes in his planner pursuant to his regular
    practice of discarding his notes every sixty days. He claims that UPS did not instruct him to discard
    his notes on a regular basis. The UPS tracking system erases tracking information after eighteen
    months.
    On July 29, 2001, at approximately 9:00 a.m., Siegel met with Plaintiff to discuss the results
    of his investigation. Seigel testified that Plaintiff, Plaintiff’s supervisor Dan Langdon, and union
    steward Mike Garcez attended the meeting. According to Siegel’s investigation report, Siegel asked
    Plaintiff if he recognized the Wisconsin address, to which the unpaid shipments were delivered.
    Plaintiff admitted that he recognized the address as that of the hospital in which his daughter was
    currently residing for treatment purposes. Siegel informed Plaintiff that UPS did not have customer
    counter receipts for the shipments and that the lack of receipts indicated that Plaintiff had not paid
    for the shipments. Plaintiff asked if he could pay for the packages at that time. Siegel informed him
    that it was too late.
    The meeting ended around 10:00 a.m. Thereafter, Plaintiff left to search for copies of
    shipment receipts. He returned with two receipts, and at 3:00 p.m. met with Siegel, Langdon, and
    Smith for a second time. This time, UPS employees Patrick Frost and Tom Hardy attended the
    meeting with Plaintiff.    Mike Garcez did not attend. Langdon informed Plaintiff that he was
    suspended pending the investigation. The next day, Langdon informed Plaintiff that he was
    terminated. Mr. Langdon denies that he was involved in the decision to terminate Plaintiff.
    4
    No. 04-2370
    After his termination, Plaintiff found a third receipt. According to UPS, however, Plaintiff’s
    receipts to not prove that he paid for the shipments because they are not stamped as paid. Plaintiff
    contests UPS’s claim that the receipts do not prove payment. It is undisputed, however, that Plaintiff
    could not find receipts for three of the packages although he maintains that he paid for all six
    shipments.
    Plaintiff contested the legality of UPS’s decision to terminate him through Union grievance
    procedures. In November 2001, the Michigan Teamsters UPS Joint Grievance Committee upheld
    UPS’s termination of Plaintiff.    One and a half years later, Plaintiff filed suit in federal court
    alleging that his termination violated the FMLA, the ADA and the PWDCRA.
    II.
    Discussion
    A.     Standard of Review
    This Court reviews a district court’s grant of summary judgment de novo. Blackmore v.
    Kalamazoo, 
    390 F.3d 890
    , 894-95 (6th Cir. 2004). Summary judgment is proper when there is no
    genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
    Fed. R. Civ. Pro. 56 (c). The party bringing the summary judgment motion bears the initial burden
    of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986). The moving party may satisfy its burden by offering affirmative evidence that
    negates an element of the non-moving party’s claim or by pointing to an absence of evidence to
    support the non-moving party’s claim. 
    Id. If the
    moving party satisfies its burden, the non-moving
    party must then set forth the specific facts showing that there is a genuine issue for trial. Anderson
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 257-58 (1986).
    5
    No. 04-2370
    In evaluating the evidence, this Court draws all reasonable inferences in favor of the non-
    moving party. 
    Blackmore, 390 F.3d at 895
    (citing Matsushita Elec. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986)). Additionally, this Court does not weigh the evidence or make credibility
    determinations. 
    Id. (citing Anderson,
    477 U.S. at 249). The existence of a mere scintilla of evidence
    in support of the non-moving party’s position, however, will be insufficient to survive summary
    judgment. 
    Anderson, 477 U.S. at 251
    . Rather, there must be evidence on which the jury could
    reasonably find for the non-moving party. 
    Id. at 250-51.
    B.     FMLA Claim
    Plaintiff asserts that Defendant violated the FMLA when Defendant failed to reinstate
    Plaintiff to the position of driver after Plaintiff returned from FMLA authorized leave, when
    Defendant commenced an investigation into his shipment of packages, and when Defendant
    terminated Plaintiff from employment. For the reasons set forth below, this Court affirms the
    decision of the district court granting Defendant’s motion for summary judgment on all Plaintiff’s
    FMLA claims.
    1.      Reinstatement
    The district court properly dismissed Plaintiff’s reinstatement claim in response to
    Defendant’s motion for summary judgment because Plaintiff failed to properly plead the claim and
    because the FMLA did not require Defendant to reinstate Plaintiff to the position of driver.
    a.      Failure to Adequately Plead
    Plaintiff fails to state a claim under the FMLA based upon Defendant’s failure to reinstate
    Plaintiff because Plaintiff failed to plead a claim based upon reinstatement in his complaint. Federal
    6
    No. 04-2370
    Rule of Civil Procedure 8 governs pleading in federal court. The pleading standard articulated in
    Rule 8 is a low standard. A plaintiff need only give the defendant “fair notice” of the plaintiff’s
    claims. Fed. R. Civ. Pro. 8(a). Fair notice consists of “what the plaintiff’s claim is and the grounds
    upon which it rests.” Swierkiewicz v. Sorema, N.A., 
    534 U.S. 506
    , 512 (2002). In this case,
    Plaintiff’s complaint did not once mention Defendant’s failure to reinstate Plaintiff. Thus, Plaintiff
    did not give Defendant “fair notice” of his reinstatement claim.
    Plaintiff’s reliance on his allegations that Defendant violated FMLA’s “prescriptive
    protections” in order to satisfy Rule 8’s pleading standard for his claim based on reinstatement must
    be rejected. Plaintiff’s legal argument is based on a distinction between two types of provisions
    contained in the FMLA: prescriptive and proscriptive.           According to Plaintiff, prescriptive
    provisions confer substantive rights, whereas proscriptive provisions prohibit retaliation for exercise
    of the prescriptive substantive rights. Plaintiff argues that because the termination was retaliatory,
    and thus, “proscriptive,” Defendant was on notice that Plaintiff was alleging violations of other
    “prescriptive” provisions, including failure to reinstate.
    There are several problems with this argument. First, Plaintiff’s complaint mentioned two
    incidents that potentially gave rise to claims under the FMLA: (1) Plaintiff’s termination; and (2)
    Defendant’s denial of medical insurance coverage for Plaintiff’s daughter’s treatment.              In
    particular, improper denial of medical coverage was not alleged to be retaliatory, and thus,
    potentially violated a “prescriptive” and not “proscriptive” provision. Consequently, Defendant had
    no reason to suspect that the reference to “prescriptive protections” in the complaint referred to an
    incident outside the complaint.
    7
    No. 04-2370
    Second, Plaintiff’s complaint expressly states, “the above acts and omissions violated both
    the prescriptive protections guaranteed to Plaintiff under the FMLA, as well as the proscriptive
    provisions of the FMLA.” Plaintiff’s complaint thus makes clear that the prescriptive violations
    alleged were based on the termination and denial of coverage described in the preceding paragraphs,
    as opposed to a basis not explicitly addressed in the complaint.
    Third, even if neither the denial of coverage nor the termination constituted “prescriptive”
    protections as opposed to “proscriptive” protections, Defendant would still not be on notice that the
    reinstatement was an issue. Plaintiffs routinely make claims that defendants believe have no basis
    in the law. Therefore, a defendant is not on notice that a plaintiff intends to base its claims on
    incidents not mentioned in the complaint simply because a defendant believes that the legal theory
    articulated in a complaint is inapplicable to the facts set forth in the complaint.
    Finally, the policy considerations underlying notice pleading support dismissal of this claim.
    One purpose of notice pleading is to allow plaintiffs to sue defendants before they have all the facts
    and use discovery to strengthen their claims. See 
    Swierkiewicz, 534 U.S. at 512
    (discussing the
    relationship between discovery and pleading under Federal Rules). Allowing plaintiffs to develop
    their claims during discovery is often necessary because the defendant may have access to
    substantially more information surrounding the events in issue than the plaintiff. In this case,
    however, Plaintiff knew that he was not reinstated. If Plaintiff believed this to be an issue, nothing
    prevented him from mentioning it in his complaint or his amended complaint. Plaintiff’s failure to
    mention the reinstatement claim prejudiced Defendant during the briefing process. Defendant failed
    to address the reinstatement claim in its motion for summary judgment presumably because
    8
    No. 04-2370
    Defendant was not aware of its existence. To allow Plaintiff’s claim to stand despite this prejudice
    would not do substantial justice. See Conley v. Gibson, 
    355 U.S. 41
    , 48 (1957); nor would the lack
    of adequate briefing facilitate a decision on the merits. See 
    id. (“The Federal
    Rules . . . accept the
    principle that the purpose of pleading is to facilitate a decision on the merits.”)
    b.      Merits
    Even if Plaintiff had properly pled his reinstatement claim, this Court would reject the claim
    on its merits. The FMLA does not require employers to reinstate an employee if the employee is
    no longer able to perform his or her former job. 29 C.F.R. § 825.214(b). Defendant argues that
    Plaintiff was medicated when he came back to work and that the medication warned against
    operating heavy machinery while medicated.1 Therefore, Defendant did not have an obligation to
    reinstate Plaintiff to the position of driver. Defendant’s argument finds strong support in the record,
    in particular in Plaintiff’s own deposition.
    Q.      When you went back to work in July 2001, where you under, at that time,
    any work restrictions?
    A.      Just on the medication.
    Q.      Did the fact that you were on the medication provide or prevent you from
    performing your work as a driver on your bid route?
    A.      I actually went to the supervisor, which I believe, I’m not – I can’t tell you
    who it was, whether it was Rick or Jim. I believe it was Rick Smigiel and I
    just mentioned – and I eventually went to Dan Landon and told him of my
    1
    Defendant also argues that the record suggests that Plaintiff requested not to be a driver and
    that Plaintiff does not recall whether or not he was reinstated to the position of driver when he
    returned. Both these arguments are meritless. Plaintiff stated in his deposition that he did not
    request to work at the counter and that he worked at the counter when he returned. This Court
    cannot accepted Defendant’s version of contested facts on summary judgment.
    9
    No. 04-2370
    concern that the medication I was on, said on the label, “Do not operate
    heavy machinery while under or taking this medication,” whatever the label
    says on there.
    Q.      For Zoloft?
    A.      I don’t recall.
    Q.      Did any of your treaters tell you that you couldn’t operate a truck for UPS in
    July of 2001?
    A.      I don’t recall.
    (J.A. at 93.) Because Defendant produced evidence clearly demonstrating that Plaintiff was not
    entitled to be reinstated under FMLA, the burden of proof on summary judgment shifted to Plaintiff
    to offer evidence to the contrary. 
    Anderson, 477 U.S. at 257-8
    .           Plaintiff fails to respond to
    Defendant’s argument in his brief.2      Therefore, the district court’s decision to grant summary
    judgment on this issue was proper.
    2.      Termination
    The district court properly dismissed Plaintiff’s FMLA claim based on termination because
    Plaintiff failed to meet his burden of production under the McDonnell Douglas standard. Plaintiff
    has failed to produce sufficient evidence to create a genuine issue of material fact as to whether
    Defendant’s articulated reason for terminating Plaintiff was pretextual.
    a.      The FMLA & McDonnell Douglas Framework
    2
    Plaintiff does state in his deposition that he believes he was capable of driving. Plaintiff did
    not discuss this in his brief at all. In any case, if Plaintiff had properly raised this issue, Defendant
    would still be able to rely on the honest belief rule discussed below.
    10
    No. 04-2370
    “The FMLA entitles an eligible employee to as many as twelve weeks of leave during any
    twelve-month period if he or she has a ‘serious health condition’ that makes the employee unable
    to perform the function of the position of such an employee.” Skrjanc v. Great Lakes Power Serv.
    Co., 
    272 F.3d 309
    , 314 (6th Cir. 2001) (citing 29 U.S.C. § 2612(a)(1)(D)).             It also prohibits
    employers from retaliating against employees for exercising the right to take FMLA authorized
    leave. 
    Id. To establish
    a prima facie case for retaliation under FMLA, a plaintiff must establish:
    (1) that he or she availed himself of a protected right under the FMLA; (2) that he or she was
    adversely affected by an employment decision; and (3) that a causal connection exists between the
    exercise of the protected right and the adverse employment decision. 
    Id. Where a
    plaintiff’s showing of the third element – causal connection – is based on indirect
    evidence, courts employ the burden shifting analysis developed by the Supreme Court in McDonnell
    Douglas Corp. v. Green, 
    411 U.S. 792
    (1973). 
    Skrjanc, 272 F.3d at 315
    . Indirect evidence is
    evidence that requires the “factfinder to draw any inference in order to conclude that the challenged
    [] action was motivated at least in part by [illegal considerations].” DiCarlo v. Potter, 
    358 F.3d 408
    , 415 (2004). Under McDonnell Douglas, once a plaintiff offers sufficient indirect evidence to
    support a prima facie case, the burden of production shifts to the defendant to articulate a legitimate,
    nondiscriminatory reason for the employment 
    decision. 411 U.S. at 802-03
    . Indirect evidence is
    sufficient to support a prima facie case if the evidence is “sufficient to raise the inference that [the]
    protected activity was the likely reason for the adverse [employment] action.” Nguyen v. City of
    Cleveland, 
    229 F.3d 559
    , 566 (6th Cir. 2000).
    11
    No. 04-2370
    If the employer articulates a legitimate reason for its action, the burden of production shifts
    back to the plaintiff to demonstrate that the employer’s reason is pretextual. There are three primary
    methods by which plaintiffs generally show pretext: by showing that the proffered reason, (1) had
    no basis in fact; (2) was insufficient motivation for the employment action; or (3) did not actually
    motivate the adverse employment action. Smith v. Chrysler Corp., 
    155 F.3d 799
    , 805-06 (6th Cir.
    1998); Manzer v. Diamond Shamrock Chem. Co., 
    29 F.3d 1078
    , 1084 (6th Cir. 1994).
    The first method is essentially an attack on the credibility of the employer’s proffered reason.
    
    Manzer, 29 F.3d at 1084
    . It consists of showing that the employer did not actually have cause to
    take adverse action against the employee based on its proffered reason, and thus, that the proffered
    reason is pretextual. 
    Id. Where the
    employer can demonstrate an honest belief in its proffered
    reason, however, the inference of pretext is not warranted. See 
    Smith, 155 F.3d at 806
    . Thus, this
    Circuit has adopted the “honest belief rule.” See Majewski v. Automatic Data Processing, Inc., 
    274 F.3d 1106
    , 1117 (6th Cir. 2001); 
    Smith, 155 F.3d at 806
    -07. Under the honest belief rule, an
    employer’s proffered reason is considered honestly held where the employer can establish it
    “reasonably reli[ed] on particularized facts that were before it at the time the decision was made.”
    Id.; see also 
    Majewski, 274 F.3d at 1117
    . Thereafter, the burden is on the plaintiff to demonstrate
    that the employer’s belief was not honestly held. 
    Smith, 155 F.3d at 807
    . An employee’s bare
    assertion that the employer’s proffered reason has no basis in fact is insufficient to call an
    employer’s honest belief into question, and fails to create a genuine issue of material fact. 
    Majewski, 274 F.3d at 1117
    .
    12
    No. 04-2370
    Similarly, the second method is an attack on the credibility of the employer’s proffered
    reason. 
    Manzer, 29 F.3d at 1084
    . Unlike the first method, the second method admits that the
    employer’s proffered reason has basis in fact but denies that it created sufficient cause for the
    adverse employment action. 
    Id. It “ordinarily
    consists of evidence that other employees . . . were
    not fired even though they engaged in substantially identical conduct to that which the employer
    contends motivated its discharge of the plaintiff.” 
    Id. In contrast,
    the third method – demonstrating that the proffered reason did not actually
    motivate the employer – does not attack the credibility of employer’s proffered reason. 
    Id. Rather, it
    admits that the reason could motivate the employer but argues that the illegal reason is more likely
    than the proffered reason to have motivated the employer. 
    Id. This method,
    however, is not identical
    to a prima facie case. 
    Id. Rather, it
    requires the plaintiff to submit additional evidence 
    Id. A plaintiff
    must offer evidence sufficient to allow a reasonable juror to find that the employer was
    motivated by illegal reasons considering both the employer’s stated reasons and evidence the
    employer offers in support of such reasons. 
    Id. at 1083;
    see also Anderson, 
    477 U.S. 257-58
    (stating
    that to survive summary judgment, a party must offer sufficient evidence to allow a reasonable jury
    to find in his or her favor).
    b.      Summary Judgment Improper Under McDonnell Douglas
    i.      McDonnell Douglas Framework Applies to This Case
    In this case, Plaintiff offers only indirect evidence to support his claim of retaliation. As the
    district court correctly noted, the only arguably direct evidence of retaliatory termination is
    Plaintiff’s testimony regarding alleged statements of Dan Langdon. Ultimately, however, this Court
    13
    No. 04-2370
    believes that Langdon’s statements are indirect evidence because they require the factfinder to make
    an inference before finding that the termination was retaliatory. Langdon allegedly stated that
    Plaintiff was taking too much time off work and that absences would result in negative
    consequences.     Langdon, however, did not directly state that taking time off would result in
    termination. Thus, the factfinder would have to infer that the negative consequences Langdon was
    referring to included termination. The necessity of this inference renders the statements indirect
    proof. See 
    DiCarlo, 358 F.3d at 415
    (holding that supervisor’s statement that she fired the plaintiff
    for illegal reasons was direct proof and distinguishing supervisor’s statement’s from isolated
    discriminatory statements of non-supervisors who were not involved in decision to terminate the
    plaintiff).
    Moreover, it is not clear from the record that Langdon was responsible for Plaintiff’s
    termination. See 
    id. Thus, additional
    evidence of Langdon’s involvement is needed in conjunction
    with Langdon’s alleged statements regarding Plaintiff’s time off to allow a factfinder to reach the
    conclusion that Landgon terminated Plaintiff in retaliation for taking his FMLA leave. The only
    such evidence is indirect evidence: Langdon’s participation in the meeting with Siegel. Therefore,
    the McDonell Douglas framework provides the law applicable to Plaintiff’s claim.
    ii.     Plaintiff Establishes a Prima Facie Case For FMLA Retaliation
    Under the McDonnell Douglas framework, the first inquiry must be whether Plaintiff
    established a prima facie case of retaliation for exercising his rights under the 
    FMLA. 411 U.S. at 802
    . The district court did not decide whether Plaintiff stated a prima facie claim for relief but
    instead assumed its existence for the purpose of the motion. The district court declined to decide
    14
    No. 04-2370
    the issue because it determined that the only evidence of causation was temporal proximity, and
    thus, whether Plaintiff adequately demonstrated causation was a difficult question. The district
    court, however, made the issue of the existence of a prima facie case more difficult than necessary
    because the court incorrectly refused to consider Plaintiff’s testimony regarding Langdon’s
    comments. The district court refused to consider Plaintiff’s testimony regarding Langdon’s
    comments because it found that Plaintiff’s sole testimony regarding the comments was in an
    affidavit filed after the motion for summary judgment. Relying on this Court’s decision in Reid v.
    Sears, Roebuck & Co., 
    790 F.3d 453
    , 459-60 (6th Cir. 1985),3 the district court determined that the
    affidavit could not create a genuine issue of material fact because it contradicted Plaintiff’s
    deposition testimony.
    Although the district court correctly recognized that this Circuit does not consider affidavits
    filed after summary judgment motions if those affidavits expressly contradict earlier deposition
    testimony, see 
    id. and Peck
    v. Bridgeport Mach., Inc., 
    237 F.3d 614
    , 619 (6th Cir. 2001), the district
    court incorrectly applied this law to Plaintiff’s case. In this case, Plaintiff’s affidavit does not clearly
    contradict his earlier deposition testimony. Plaintiff’s affidavit states:
    On several occasions before my termination, Mr. Langdon informed me that he and
    UPS management were unhappy with my taking medical and FMLA leave for my
    clinical depression, that such absences were considered by Mr. Langdon and UPS to
    3
    In Reid, this Court held that a district court properly excluded a plaintiff’s affidavit alleging
    that the defendant employer had assured her she would not be laid off. 
    Reid, 790 F.3d at 459-60
    .
    This Court found that it contradicted the plaintiff’s earlier deposition testimony that she could not
    remember her employer telling her anything other than that she could be fired for punching another
    employee’s time card. 
    Id. This Court
    reasoned that a non-moving party should not be able to create
    non-existent issues of fact by filing affidavits after the opposing party files for summary judgment.
    
    Id. 15 No.
    04-2370
    be, “problems,” [sic] and that taking this time off would cause negative
    consequences
    and would cause me to be “in trouble.”
    (J.A. at 144.) Similarly, in his deposition, Plaintiff made the following statements:
    Q:       Did you, when you returned from your disability leave in the first week of
    July of 2001, did anyone say anything negative to you about the fact that
    you’ve been on disability leave?
    A:       I guess prior you asking me [sic] if anyone said anything negative about myself or
    my daughter being ill.
    Q:       Right.
    A.       There were negative comments about how much time I had taken off.
    Q:       Who said those comments?
    A:       Dan Langdon.
    Q:       What did he say?
    A:       Just the fact that I was taking too much time off.
    Q:       And he said you would have to check into FMLA?
    A:       Yes.
    (J.A. at 95.)
    Q:       Do you remember any positive or negative statements made to you by any
    managers or supervisors at UPS regarding the time you were taking off for
    your FMLA?
    A:       Yes, I remember Dan Langdon making comments about the amount of time
    that I was taking off. That I would ask for a day off or just ask him, that I
    needed to be off for an appointment, you know, and also when I took the
    initial time off, and it wasn’t – I guess, what I would call a concern, it was
    more of a – well, you’re going to have to do it through FMLA, or I just can’t
    give you the time off now, but there’s other comments made about how much
    time I was taking off.
    16
    No. 04-2370
    (J.A. at 97.) Although the statements in Plaintiff’s deposition are not as clear as the statement
    contained in Plaintiff’s affidavit, the statements are not contradictory.       See King v. City of
    Eastpointe, 86 Fed. Appx. 790, 793 n.1 (6th Cir. 2003 ) (unpublished) (holding that Reid was
    inapplicable where the defendant “[did] mention that the parking lot is a high crime area in his
    deposition, although perhaps not in as explicit terms as he does in his affidavit.”) Therefore, the
    affidavit evidence should not have been excluded under Reid. Additionally, the statements in the
    deposition are unquestionably relevant as Reid does not operate to exclude deposition testimony.
    See 
    Reid, 790 F.2d at 459-60
    . Consequently, this Court should consider Plaintiff’s allegations
    regarding Langdon’s negative comments.
    Considering Plaintiff’s affidavit, Plaintiff points to sufficient evidence to demonstrate the
    existence of a prima facie case of retaliation under the FMLA. Plaintiff exercised his right to take
    leave for his depression under the FMLA and was terminated three weeks after he returned from his
    leave. Thus, Plaintiff clearly established the first two elements of a prima facie case: (1) exercise
    of a right, and (2) adverse employment decision.
    Furthermore, Plaintiff also established the third element: causal connection between the
    exercise of FMLA protected right and the adverse employment decision. In particular, two pieces
    of evidence support Plaintiff’s allegation of causation: temporal proximity and the negative
    comments of Plaintiff’s supervisor, Langdon, as testified to by Plaintiff in his deposition. Defendant
    began investigating Plaintiff around the time Plaintiff returned to work or approximately two months
    after he took his FMLA leave. Additionally, Langdon made comments to Plaintiff indicating that
    his absences were a problem. Because Langdon’s comments combined with the temporal proximity
    17
    No. 04-2370
    between Plaintiff’s FMLA leave and termination are “sufficient to raise the inference that [the]
    protected activity was the likely reason for the adverse [employment] action,” Plaintiff has met the
    burden of establishing a prima facie case. 
    Nguyen, 229 F.3d at 566
    .
    ii.     Defendant Proffered Legitimate Reason for Termination
    Next, under the McDonnell Douglas framework, Defendant must articulate a legitimate
    reason for Plaintiff’s 
    termination. 411 U.S. at 802
    . Here, Defendant argues that it terminated
    Plaintiff pursuant to its dishonesty policy for mailing packages without paying for them. This is a
    legitimate reason to terminate Plaintiff because it is legally sufficient to justify a judgment for
    Defendant. Texas Dep’t of Comm. Affairs v. Burdine, 
    450 U.S. 248
    , 255 (1981).
    Furthermore, contrary to Plaintiff’s contention, Defendant need not offer “proof” that
    Plaintiff failed to pay for the packages in order for Defendant’s proffered reason for termination to
    qualify as legitimate. See 
    id. Rather, Defendant
    need only point its own statements in the record
    articulating the reason as a basis for Plaintiff’s termination. See 
    id. (stating that
    arguments of
    counsel in briefs are insufficient, the reasons must be admitted into evidence). The ultimate burden
    of persuasion always remains with Plaintiff. 
    Id. Here, the
    Joint Appendix contains a copy of the
    Dishonesty Policy, and Plaintiff admits that Defendant informed him that he was terminated
    pursuant to this policy at the time of his termination. Thus, Defendant has met its burden.
    iii.    No Genuine Issue of Material Fact Exists as to Pretext
    Finally, because Defendant offered a legitimate reason for Plaintiff’s termination, the burden
    is on Plaintiff to produce evidence that demonstrates 
    pretext. 411 U.S. at 802
    . Plaintiff failed to
    produce evidence indicating that Defendant’s proffered reason for his termination was pretextual,
    18
    No. 04-2370
    and thus, no genuine issue of material fact exists as to whether Plaintiff’s termination was
    retaliatory. See 
    id. As discussed
    above, Plaintiff must offer evidence indicating either that the
    proffered reason was false, that it was an insufficient reason for termination, or that it was not the
    actual reason for termination. 
    Manzer, 29 F.3d at 1084
    . Plaintiff does none of these things.
    First, Plaintiff does not offer evidence demonstrating that the proffered reason for his
    termination was false. Plaintiff misses the point when he argues that Defendant cannot prove that
    Plaintiff did not pay for the shipments. Plaintiff must offer evidence that he paid, not point to
    Defendant’s inability to show that he did not pay.4 See 
    id. Moreover, Defendant
    has adequately
    established that it is entitled to the protection of the “honest belief rule,” under which the falsity of
    Defendant’s reason for terminating plaintiff cannot establish pretext as a matter of law.5 
    Smith, 155 F.3d at 806
    -07. An employer may invoke the honest belief rule if the employer can show that it
    “reasonably rel[ied] on particularized facts before it at the time the decision was made.” 
    Id. Here, Defendant
    had Siegel’s investigation report before it when it decided to terminate Plaintiff. The
    report stated that Defendant had no record of payment on six shipments that Plaintiff made.
    Normally, if payment is made, Defendant’s Consolidated Billing Site has a record of customer
    counter receipts.   In this case it did not. Moreover, Plaintiff was unable to give a reasonable
    alternative explanation for the missing receipts when confronted. Although he found three receipts
    from packages the receipts were not stamped as paid, and thus, did not demonstrate that Plaintiff
    4
    Defendant’s ability or inability to prove that Plaintiff paid would, however, be relevant to
    the third method of demonstrating pretext, i.e. demonstrating that the proffered reason was not the
    actual reason.
    5
    The honest belief rule would not prevent Plaintiff from establishing pretext through methods
    other than the falsity of the reason offered.
    19
    No. 04-2370
    actually paid for the packages. Plaintiff’s assertion that Defendant made a clerical error simply has
    no support in the record. Thus, Defendant’s decision to terminate Plaintiff based on Mr. Siegel’s
    report was made in reasonable reliance on particularized facts before it at the time of the decision,
    and Defendant is entitled to the protection of the honest belief rule. 
    Smith, 155 F.3d at 806
    -07.
    Second, Plaintiff does not produce evidence demonstrating that the proffered reason was an
    insufficient basis upon which to rest his termination. Plaintiff attempts to demonstrate that the
    “dishonesty” policy was an insufficient basis for his termination by pointing to Defendant’s alleged
    disparate treatment of him in comparison to other employees. In particular, Plaintiff contends that:
    (1) UPS did not terminate other employees for shipping packages without paying for them at the
    time of shipment; and (2) UPS did not require other employees to produce receipts evidencing
    payment of packages in order to avoid termination. Even assuming that Plaintiff’s contentions are
    correct,6 they fail to establish that the dishonesty policy was an insufficient basis for Plaintiff’s
    termination because neither contention is relevant to Plaintiff’s termination. Plaintiff was not
    terminated for shipping packages and paying for them later but shipping packages without paying
    at all. Similarly, Plaintiff was not terminated for failing to produce receipts but because UPS records
    indicated that Plaintiff had not paid for packages. Defendant did not request receipts from other
    6
    The first contention is highly suspect. Plaintiff offers several affidavits from UPS
    employees stating that it was common for employees to leave packages for shipment before or after
    the customer counter register opened. Thus, these packages might be shipped prior to payment.
    When employees left packages at the counter after hours, however, they generally left payment with
    the packages. The payment was thus simultaneous with the shipment but simply processed later
    when the counter opened. Only the Frost Affidavit states that employees sometimes left packages
    without payment. Frost later repudiated and clarified his affidavit. Frost explained that management
    did not pay for in house shipments, but that other employees left payment when they left their
    packages.
    20
    No. 04-2370
    employees because there was no record of other employees failing to pay for packages. While there
    are records of other packages not being paid for, there is no evidence linking those records to other
    employees.
    Third, Plaintiff did not produce evidence demonstrating that the proffered reason was not
    the actual reason for his termination. To meet his burden of creating a genuine issue of material fact
    as to pretext by the third method, Plaintiff cannot simply rely on his prima facie case.7 
    Manzer, 29 F.3d at 1084
    . Instead, he must offer additional evidence of a causal connection sufficient to allow
    a reasonable jury to disbelieve Defendant’s explanation for Plaintiff’s termination. 
    Id. at 1083-84.
    Plaintiff’s only additional evidence of causal connection is an alleged conflict of Langdon’s
    testimony with Mr. Siegel’s testimony. In his deposition, Siegel testified that Langdon was present
    at the July 29, 2001 meeting regarding Plaintiff’s packages. In contrast, Landgon testified that he
    did not recall the meeting and believes that he was on vacation around the time the decision to
    terminate Siegal was made. Furthermore, he expressly denied any involvement in the investigation
    or decision to terminate Plaintiff. Plaintiff argues that Siegal’s testimony disproves that Langdon
    was not involved in the decision to terminate him. This Court, however, disagrees. Langdon was
    present at the meeting as the center supervisor. His presence does not necessarily indicate that he
    personally made the decision to investigate or terminate Plaintiff. It is entirely consistent with
    Defendant’s position that Langdon was a middleman. Thus, there is no “inconsistency” indicating
    7
    This is not to say that plaintiffs may never rely on their prima facie cases. Where a
    plaintiff’s prima facie case is sufficiently strong to allow a reasonable jury to find that the
    defendant’s proffered reason for termination is not the actual reason for termination, then the prima
    facie case suffices to create a genuine issue of material fact.
    21
    No. 04-2370
    that Defendants are inherently unbelievable and Plaintiff fails to create a genuine issue of material
    fact as to pretext.
    c.      Spoliation
    Next, Plaintiff attempts to survive summary judgment by urging this Court to hold that
    Defendant’s spoliation gives rise to an adverse inference that satisfies Plaintiff’s burden of
    production under the McDonnell Douglas test. We reject Plaintiff’s argument because the
    destruction of evidence made before notice of litigation does not provide this Court with any
    foundation to infer that the missing evidence was adverse to Defendant.8
    A threshold question regarding spoliation is whether to apply state law or federal law. Both
    parties contend that state law governs spoliation issues. It is not entirely clear from the case law,
    however, whether state or federal law should apply.9 Regardless of the decisional law, state or
    federal, this panel finds that the district court did not err in disregarding Plaintiff’s allegations of
    spoliation.
    8
    Defendant contends that Plaintiff waived any right to an adverse inference based on
    spoliation because Plaintiff did not file a motion pursuant to Federal Rule of Civil Procedure 7 with
    the district court. Defendant, however, addresses this argument in a perfunctory manner and fails
    to clarify its reasoning. Therefore, we decline to entertain it on appeal. United States v. Layne, 
    192 F.3d 556
    , 566 (6th Cir. 1999).
    9
    This Court recently held “[t]he rules that apply to the spoiling of evidence and the range of
    appropriate sanction are defined by state law.” 
    377 F.3d 624
    , 641 (6th Cir. 2004). Decision by
    previous panels of this court, however, might be read as suggesting a contrary rule: the pre-litigation
    destruction of evidence is governed by the substantive law on of the case. See United States v.
    Copeland, 
    321 F.3d 582
    (2003) Beil v. Lakewood Eng’g and Mfg., 
    15 F.3d 546
    (6th Cir. 1994).
    Because the substantive choice of law does not alter the outcome of this case, the court does not find
    it necessary to decide this.
    22
    No. 04-2370
    If this Court were to apply Beck and analyze the issue under Michigan law, the court would
    uphold the district court’s decision. In Beck, the court applied Michigan law and found that
    “[s]politation is the intentional destruction of evidence that is presumed to be unfavorable to the
    party responsible for the 
    destruction.” 377 F.3d at 641
    The district court in the instant case found
    no evidence of intentional destruction of evidence, since Siegal discarded his notes in the ordinary
    course of business two years prior to Plaintiff’s suit. The district court did not abuse its discretion.
    If the court were to apply federal law, the court would reach an identical conclusion. Any
    adverse inference from spoliation, while not entirely dependant on bad faith, is based on the
    spoliator’s mental state. Nation-Wide Check Corp., Inc. v. Forest Hills, 
    692 F.2d 214
    , 219 (1st Cir.
    1992).10 Where the spoliator has no notice of pending litigation, the destruction of evidence does
    not point to consciousness of a weak case. 
    Id. at 218.
    Here, both Spiegel’s notes and the tracking
    records were destroyed long before the advent of federal court litigation and in the course of regular
    business practice. Speigel threw out his notes every 60 days, and the tracking records are destroyed
    every 18 months. Thus, at the latest, Spiegel destroyed his notes in the fall of 2001, and the tracking
    records were destroyed in early 2003. Plaintiff did not initiate this lawsuit until July 2003.
    Consequently, UPS was not on notice that Plaintiff would need any evidence, or that the evidence
    could be used against it, until several months after it destroyed its records. Because UPS could not
    10
    In spoliation claims based on federal law, this court has applied the Federal Rules of
    Evidence to determine the admissibility of any inferences to be drawn from such evidence. See
    
    Copeland, 321 F.3d at 597-99
    . Nation-Wide Check Corp., Inc. is an example of a civil case in which
    the First Circuit applied the Federal Rules of Evidence to the issue of what inferences may be drawn
    from spoliation evidence.
    23
    No. 04-2370
    have known that the evidence would potentially be used against it, there is no basis from which this
    Court can infer that the records were adverse to UPS.
    Plaintiff’s argument that UPS was on notice of Plaintiff’s potential use of the destroyed
    records because of the Union grievance proceeding in November 2001 must be rejected. The
    evidence available indicates that UPS’s tracking records pertaining to Plaintiff’s shipments were not
    destroyed until after the Union proceedings ended. Thus, theoretically, the records were available
    to Plaintiff for use during the proceedings. Because Plaintiff does not allege that Defendant
    prevented Plaintiff from accessing the records for the Union proceedings, there is no basis from
    which this Court can infer that Defendant did not want Plaintiff to use the records, and thus, that the
    records were adverse to Plaintiff.
    Although Mr. Siegel’s notes were probably destroyed before the Union proceedings, the
    district court’s denial of an adverse inference on this basis is moot inasmuch as the inference alone
    is insufficient to meet Plaintiff’s burden of production. As noted above the strength to be accorded
    an inference depends on the circumstances of the case, in particular the extent to which spoliation
    indicates consciousness of a weak case. Nation-Wide 
    Check, 692 F.2d at 219
    . Although Mr.
    Spiegel’s intentional destruction of evidence could indicate that he was believed his investigation
    notes would be detrimental to his employer’s case, in light of other evidence in this case discussed
    infra, an inference based on spoliation of his investigation notes would not allow a rational
    factfinder to conclude that Defendant’s reason for terminating Plaintiff was pretextual. Defendant’s
    business records indicate that Plaintiff failed to pay for several shipments. Plaintiff is unable to
    show that the records were inaccurate. The investigation notes were very unlikely to contain
    24
    No. 04-2370
    information that contradicted Defendant’s business records because Mr. Siegal was an investigator
    and his work did not include recording payments. Rather, he collected information from other
    departments. Therefore, even if an adverse inference was warranted it could not satisfy Plaintiff’s
    burden of production and the issue is moot.
    d. The Frost Affidavit
    In light of Plaintiff’s failure to meet his burden of production even with the Frost Affidavit,
    Defendant’s motion to strike is moot. The Frost affidavit states that employees shipped packages
    and paid for them later. Plaintiff presumably offered it to the district court to support his attempt
    to rebut Defendant’s proffered reason for termination, dishonesty, by showing that other employees
    shipped packages without paying for them at the time of shipment without being terminated. As the
    district court explained, however, “the key relevant aspect relating to whether [Plaintiff] was treated
    differently than other similarly situated employees is shipping packages without ever paying for
    them. Frost’s affidavit doesn’t help [Plaintiff] on this point, because Frost does not state that this
    ever happened. Therefore, the Court may simply disregard Frost’s affidavit without striking it.”
    (J.A. at 19.) This Court agrees with the district court’s reasoning, and therefore, recommends that
    this Court decline to rule on Defendant’s motion to strike the Frost affidavit.
    C.     ADA and PWDCRA Claims
    Like Plaintiff’s FMLA claims, Plaintiff’s ADA and PWDCRA claims must also fail because
    Plaintiff fails to produce evidence sufficient to create a genuine issue of material fact as to whether
    Defendant’s articulated reason for terminating Plaintiff was pretextual.
    25
    No. 04-2370
    The ADA prohibits employers from discriminating against qualified individuals with
    disabilities. “A prima facie case of disability discrimination requires the plaintiff to prove that: (1)
    he is an individual with a disability; (2) he is otherwise qualified to perform the job requirements,
    with or without reasonable accommodations; and (3) he was discharged solely by reason of his
    handicap.” Williams v. London Util. Comm’n, 
    375 F.3d 474
    (6th Cir. 2004) (quotation and citation
    omitted). As with FMLA retaliation claims, courts apply the McDonnell Douglas burden shifting
    test. Martin v. Barnesville Exempted Village Sch., 
    209 F.3d 931
    , 934 (6th Cir. 2000). Courts
    interpret the PWDRCA in accordance with the ADA. Cassidy v. Detroit Edison, 
    138 F.3d 629
    , 634
    (6th Cir. 1998). Thus, the resolution of a plaintiff’s ADA claims will generally resolve the
    plaintiff’s PWDRCA claims.
    Plaintiff’s disability claims are even weaker than his FMLA retaliation claims. Plaintiff’s
    sole evidence of discrimination on account of his depression, or perceptions of his depression, is
    temporal proximity. While, as noted in the previous section, Langdon made negative comments
    regarding Plaintiff’s absences, Plaintiff did not allege that Langdon made negative comments about
    his depression. In light of Defendant’s proffered reason for Plaintiff’s discharge, it is very clear that
    temporal proximity alone cannot create a genuine issue of material fact as to whether Defendant’s
    proffered reason for termination was pretext, and that the actual motivation was disability
    discrimination. See Nguyen, 
    229 F.3d 559
    (stating that temporal proximity sometimes insufficient
    for a prima facie case).
    III.
    CONCLUSION
    26
    No. 04-2370
    For the foregoing reasons, we AFFIRM the order of the district court granting Defendant’s
    motion for summary judgment and dismissing Plaintiff’s claims.
    27