Parries v. Makino, Inc. ( 2004 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0186n.06
Filed: December 21, 2004
NO. 03-4173
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM H. PARRIES, II, )
)
)
Plaintiff-Appellant, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
)
MAKINO, INC., )
)
)
Defendant-Appellee. )
______________________________________
BEFORE: DAUGHTREY and SUTTON, Circuit Judges, and FORESTER,*
District Judge.
MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, William Parries,
appeals from the district court’s order granting summary judgment to his former employer,
Makino, Inc., in an action Parries filed charging violation of Title VII of the 1964 Civil Rights
Act, 42 U.S.C. §§ 2000e et seq., and intentional infliction of emotional distress under Ohio
state law. Parries was initially terminated in November 1999 but was reinstated by order
of an arbitrator in August 2000. In June 2001, he was terminated a second time. In his
complaint, Parries alleged that both actions were based on race discrimination and that the
*
The Hon. Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
employer had illegally retaliated against him for filing a discrimination charge with the Ohio
Civil Rights Commission after his termination in 1999. The district court granted summary
judgment to Makino on all counts, finding that the plaintiff had not made out a prima facie
case of either discrimination or retaliation. On appeal, we conclude that because of an
insufficient ruling in connection with the discrimination claims and because the plaintiff has
made out a prima facie case of retaliation, the case must be remanded to the district court
for further proceedings as outlined below.
FACTUAL AND PROCEDURAL BACKGROUND
Parries began working for Makino, Inc., in 1990 and was employed there
continuously until his first termination in November 1999. He was one of very few African-
American employees among the union workforce at Makino. At the time of his 1999
termination, for example, three of the 150 union employees were African-American. Two
years later, when he was fired a second time, Parries was the only African-American in the
30-person1 union workforce. Parries believed that he had experienced disparate treatment
based on his minority status almost from the beginning of his employment at Makino and,
as a result, he filed his first complaint with the Ohio Civil Rights Commission in March 1990
and lodged several more in the following years. This case, however, deals only with events
leading to his terminations in 1999 and 2001, and the only protected activity alleged as a
basis for his retaliation claim is the charge he filed with the Ohio Commission following his
1999 termination.
1
The figure 30 appears in Parries’s affidavit, but it appears to be a typographical error. Otherwise,
the union work force at Makino went from 150 to 30 in a two-year period, a drop of 120 employees.
-2-
The facts in the record establish that in early 1998, Makino promoted Parries to the
position of electrical technician, which placed him under the supervision of Don Hoerlein
and Jeff Reichert. In September 1998, a different supervisor observed Parries returning
late from lunch break. That supervisor, Sisson, gave Parries a verbal warning and placed
a note in Parries’s file. Makino used a system of “progressive discipline” under which an
employee goes though three steps of discipline levels before being subject to discharge.
However, the note that Sisson wrote did not count as a formal discipline step, and Parries
was not aware of its existence. In November 1998, Reichert did place Parries on the first
level of discipline after observing him returning late from lunch. Parries said that he had
been talking with two other employees about a company meeting he attended earlier in the
day. In March 1999, Parries was placed on the second step of discipline when he returned
late from break time. Parries’s explanation was that he was a candidate for a union
leadership position and had been discussing contract issues with a fellow union member.
A few days later, Parries missed work without informing his supervisor in advance.
Under Makino’s point-based attendance policy, an employee earned credit points for good
attendance and penalty points for any absences. Credits could be applied against
absences, but only if the employee called in within the first two hours of an absence.
Parries’s absence placed him over the ten-point limit and thus subjected him to discipline.
Because Parries had forgotten to call in the morning of his absence, Hoerlein refused
Parries’s post hoc request to apply his credit points. Hoerlein placed Parries on the third
disciplinary level for this infraction.
In October 1999, Parries was recorded as having committed three disciplinary
infractions that were not individually punished but that led up to a “last chance agreement.”
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Specifically, on October 12, a supervisor observed Parries clocking into work and then
returning to his car, parking, and re-entering the facility. The supervisor reported the
incident to Reichert, who gave Parries a verbal warning. Two days later, on October 14,
Parries returned five minutes late from break after spending the time discussing safety
issues with other union members. The next day, on October 15, Parries remained away
from his workstation for longer than permitted for a discussion with the union president,
who was a fellow employee. In response to these three incidents, Makino management
met with Parries and issued the “last chance agreement.” The agreement was in lieu, they
said, of the usual fourth step of discipline, which was permanent termination. The
agreement provided that “[a]ny violation of this ‘Last Chance Agreement’ will result in
disciplinary action, up to and including termination.” Parries declined to sign the document.
Invoking the terms of the “last chance agreement,” Makino terminated Parries a
month later, in November 1999. Earlier that month, Parries had lost his employee badge
and could not clock in and out of work in the usual fashion. Parries called his supervisor
on the phone to check in verbally for the first two days, but there is a dispute as to whether
he did so for the following three days. Although Parries maintains that he saw Reichert on
the floor and asked him to check him in, Reichert had no record of this. Reichert concluded
that Parries had violated the “last chance agreement” and contacted the manager of labor
relations at Makino, who decided to discharge Parries. In response, Parries filed a claim
of race discrimination and retaliation with the Ohio Civil Rights Commission, which found
that “probable cause d[id] exist” to credit Parries’s allegations of discrimination.
Parries also challenged his termination in arbitration, and he won. The arbitrator
concluded that Parries had not violated the “last chance agreement” and ordered
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reinstatement with back pay, which occurred on August 8, 2000. His new position was as
a unit assembler under the supervision of Hoerlein. Once again, Parries immediately
began to have run-ins with his supervisors. Twice in August, Hoerlein spoke to Parries
about making “loud noises” while at his work station. In November 2000, Hoerlein gave
Parries a five-day suspension after finding him away from his work-station without
permission. Makino later rescinded the suspension and instead gave Parries a “final
warning.” In response to this incident, Parries filed a retaliation claim with the Ohio Civil
Rights Commission. In December 2000, Parries again faced discipline, this time for
attempting to tape-record a meeting between the union and Makino management.
Although Parries claimed that the anti-recording policy was never made explicit, the
company insisted that he had been told in a previous meeting that he was not allowed to
make such tape-recordings. In January 2001, Parries received a “final warning” from
supervisor Morris after improperly recording his hours. On February 1, 2001, Parries had
a verbal dispute with Morris and alleged that Morris “stepped toward him in a threatening
way with his fists raised.” Parries then filed yet another complaint with the Ohio Civil
Rights Commission. In March, Morris gave Parries two verbal and one written warning for
his poor work performance.
The situation came to a head in June 2001 when Parries entered into an argument
with Morris and Hoerlein about whether Hoerlein had informed the employees that overtime
was voluntary or mandatory. In the course of the argument, Parries called Hoerlein a liar
and told him to “get some balls.” Makino then terminated Parries’s employment.
DISCUSSION
A. The Discrimination Claims
-5-
“[A] plaintiff may establish a prima facie case of discrimination either by presenting
direct evidence of intentional discrimination by the defendant or by showing the existence
of facts which create an inference of discrimination.” Talley v. Bravo Pitino Rest., 61 F.3d
1241, 1248 (6th Cir. 1995) (citations omitted). Although Parries attempted, unsuccessfully,
to produce direct evidence of discrimination in regard to the defendant’s actions,2 the bulk
of the evidence in this case was aimed at “creat[ing] an inference of discrimination.” To
show an inference of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792(1972), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),
mandate a showing that the plaintiff (1) was a member of a protected class; (2) was
discharged; (3) was qualified for the position; and (4) was replaced by a person outside
the class. There is no dispute in this case that Parries has established the first three
McDonnell Douglas factors for both his 1999 and 2001 terminations. The district court
found, however, that Parries had not established that he had been replaced by a non-
minority worker in both instances and had therefore failed to make out a circumstantial
case of discrimination.
Following Parries’s dismissal in 1999, Makino filled his position with outside
contractors. The record contains no information about their ethnicity or race because
Parries failed to produce any such evidence. Hence, Parries has not shown he was
replaced with a non-minority person, the fourth McDonnell Douglas element. Makino
maintains that Parries was not replaced at all, but rather that his position was eliminated.
2
See Section B, below.
-6-
Nevertheless, instead of showing the fourth McDonnell Douglas element, a plaintiff
may make out a prima facie case by showing “that a comparable non-protected person was
treated better.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). To
establish disparate treatment, the plaintiff must show that he was similarly-situated in all
relevant aspects to the comparable worker. See Pierce v. Commonwealth Life Ins. Co.,
40 F.3d 796, 802 (6th Cir. 1994). In a discriminatory discipline or firing context, “similarly-
situated” means that “the individuals with whom the plaintiff seeks to compare his/her
treatment must have dealt with the same supervisor, have been subject to the same
standards and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for
it.” Mitchell, 964 F.2d at 583. Although the comparison need not involve identical
misconduct, the misconduct must be of comparable seriousness. See Hollins v. Atl. Co.,
Inc., 188 F.3d 652, 659 (6th Cir. 1999).
Parries passed through four stages of disciplinary action prior to his 1999
termination. He argues that a showing of disparate treatment in even one of the stages
invalidates his final termination because the termination was built upon the successive
disciplinary measures. However, in reviewing the individual disciplinary actions and the
evidence of comparables produced, we cannot say that any one of the employer’s actions
meets the Mitchell similarly-situated standard. Viewed as a whole, the record of discipline
suggests that Parries, as one of the very few African-American employees, was subjected
to more intense scrutiny by his employers than were other, non-minority workers, but the
same evidence does not establish legally disparate treatment.
-7-
For example, the record shows that Parries was placed on the first level of discipline
on November 17, 1998, for returning half-an-hour late from his lunch break. Parries
argues that he was 15 minutes late because he started his lunch break late due to a
company meeting that ran long. Then, on his way back from lunch, two other employees
questioned him about the contents of the meeting. When Parries was returning to his work
station, supervisor Reichert confronted him about being late. Parries was written up, but
the two white employees with whom he had been conversing received no discipline.
However, Parries did not show that he was similarly-situated to his two co-workers; he
presented no evidence that Reichert was a supervisor of the two white men, that they were
not on an approved break, that Reichert saw the other men away from their work stations,
or even that they actually were away from their work stations while talking to Parries.
The second disciplinary action occurred on March 15, 1999, when Parries was
written up for returning late from lunch after discussing union issues with co-workers as part
of his campaign for a union leadership position. Parries claims that it was common practice
for union candidates to take a few minutes of work time to explain issues to their co-
workers. Parries submitted declarations from two co-workers alleging that they had each
engaged in campaigning on company time and had not been punished for it. Again,
however, Parries did not show that he was similarly-situated to those two co-workers
because there was no indication of who the workers’ supervisors were, whether the
supervisors were aware of the practice, when the co-workers’ campaigning occurred, or
whether it was done in a similar manner. To make out a case of disparate treatment, the
plaintiff must produce specific facts showing he and the non-minority employee engaged
-8-
in similar conduct. See Hardy v. Eastman Chem. Co., Docket No. 01-5361, 2002 WL
31553926 (6th Cir. Nov. 12, 2002). That requirement was not met in this instance.
Parries was placed on the third disciplinary level on March 22, 1999, after an
unscheduled absence caused him to exceed his allowable “absentee points” and he failed
to call in as required by company rules. As noted above, supervisor Hoerlein refused to
allow Parries to apply his good points retroactively and suspended Parries for three days.
In contrast, the plaintiff noted, a white co-worker, Brett Manning, similarly exceeded his
permissible absentee points in 1998 without calling in, yet Hoerlein allowed him to apply
his good points retroactively. According to Makino, the difference in treatment was due to
the fact that at the time he was permitted to apply the offset, Manning had been an
employee of Makino for only a few months and told supervisor Hoerlein that he had
misunderstood the absentee policy. Apparently Hoerlein had then explained the policy to
him and warned him not to engage in another infraction. By contrast, Parries had been a
Makino employee for almost ten years and was fully familiar with the policy. Although the
call is a close one, we cannot say that the district court erred in finding that Manning’s
status as a recent employee unfamiliar with the protocol constituted “differentiating or
mitigating circumstances that would distinguish [his] conduct or the employer’s treatment
of [him] for it.” Mitchell, 964 F.2d at 583. Indeed, in 1999 Manning exceeded his allowable
absentee points and was subjected to the usual discipline, three day’s suspension. Finally,
we are not persuaded by the testimony of another white co-worker, Kincaid, who testified
that some employees were allowed to apply good points to absences retrospectively,
because Kincaid was unable to give any details as to when or to whom this happened or
what supervisor was involved.
-9-
On October 18, 1999, Makino gave Parries a “last chance” warning as a result of
three additional minor infractions. For each one of these infractions, Parries offered
substantial evidence that a similarly-situated white employee was treated better. However,
Parries was disciplined for the combination of the three, not each individual incident.
Parries further argues that the so-called “last chance agreement” was itself evidence of
disparate treatment because it was an unprecedented discipline step that was not
countenanced or mentioned by the union contract. Not surprisingly, however, the district
court found that the agreement actually benefitted Parries because it was in lieu of
immediate termination and thus could not be used as evidence of negative disparate
treatment. However, the existence of the “last chance” warning did not insulate Makino
from arbitration; Parries requested arbitration after being fired under the “last chance
agreement” and won. Notably, although Parries succeeded in his effort to attain
reinstatement, the arbitrator’s order included a statement to the effect that the arbitrator had
given “no weight or substance to any claim of racial discrimination.” This determination
squares with the district court’s finding that the plaintiff failed to show disparate treatment
in any of the disciplinary steps leading up to his 1999 termination and thus has not made
out a prima facie case of racial discrimination with regard to that action by Makino.
We conclude that Parries likewise failed to make out a prima facie case for his 2001
termination under the four McDonnell Douglas elements. He undisputedly met the first
three elements but, as with the 1999 claim, did not adequately demonstrate that he was
replaced by a non-minority person. When Parries was fired in 2001, his duties were split
between two existing workers, both white, who were on a lower union labor grade. Eight
to ten months later, Makino promoted one of these employees, Greg Waites, to the higher
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labor grade position Parries had formerly occupied. “Spreading the former duties of a
terminated employee among the remaining employees does not constitute replacement”
and, hence, the question is whether the delayed promotion of Waites constituted
replacement. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1115 (6th Cir.
2001) (quoting Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992)). The record
indicates that Waites took on many, but not all, of the plaintiff’s duties without any initial
change in position or employment status. That fact, together with the substantial delay in
Waites’s promotion, suggests that Waites was not promoted to “replace” Parries directly.
We cannot say that the district court erred in concluding that the plaintiff has failed to
demonstrate that promoting Waites after a long delay was tantamount to replacement.
As an alternative to the fourth McDonnell Douglas element, Parries attempted to
show that the second termination resulted from disparate treatment. In June 2001, Parries
was fired after engaging in a heated discussion with supervisors Morris and Hoerlein and
calling Hoerlein a liar who needed to “get some balls.” Under the union collective
bargaining agreement, however, Makino may terminate employees for offenses of “a
serious nature,” including insubordination, even if the employee has no prior disciplinary
problems. Parries argues that the “get some balls” statement was common shop talk and
did not merit termination, but he presented no evidence of fellow employees making similar
comments to management.
Parries also argues that, even if the final termination incident shows no disparate
treatment, Makino unfairly disciplined him in several incidents which led up to the
discharge. Unlike his situation leading up to the 1999 termination, Parries was not placed
explicitly on escalating levels of discipline, but his disciplinary history clearly did play a role
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in Makino’s decision to fire him in 2001. Even when these prior incidents are considered,
however, they do not support an allegation of disparate treatment. In November 2000,
supervisor Hoerlein suspended Parries for five days as a result of his being away from his
workstation without permission. This suspension was subsequently rescinded and Parries
was given back-pay, but he received a written final warning informing him that he was in
violation of the “last chance agreement.” Farmer, a white co-worker who was with Parries
away from the workstations, was given only a documented verbal warning placing him on
discipline level one. Farmer was not similarly situated, however, because Farmer did not
have the history of disciplinary problems that Parries did and was not subject to a “last
chance” warning. Hile, another white co-worker under Hoerlein’s supervision, testified that
he was out of his work area on the same day but was not disciplined. Hile claimed that
someone, he could not remember who, told him that Hoerlein had been looking for him and
knew he was away from his work station. There is no non-hearsay evidence, however, that
Hoerlein had knowledge of Hile’s infraction and, thus, no proof that Hile was similarly
situated to Parries.
In December 2000, Parries was suspended for three days after tape recording a
meeting with management. Parries claimed his punishment was unduly harsh, but he
provided no evidence of other similarly-situated employees being treated differently. In
January 2001, Parries was disciplined more harshly than some white co-workers for
improperly recording his hours but, again, failed to supply evidence that the co-workers
were similarly-situated in terms of disciplinary history, supervisor, or severity of misconduct.
Even if Parries had made out a prima facie case for his two terminations, he has not
provided sufficient evidence to show that Makino’s reasons for the terminations were
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pretextual. “ Once a plaintiff establishes a prima facie case of discrimination, the burden
shifts to the defendant to rebut the presumption of discrimination by providing evidence
showing that the plaintiff was terminated for a legitimate nondiscriminatory reason.” Smith
v. Leggett Wire Co., 220 F.3d 752, 758-59 (6th Cir. 2000). Because Makino presented a
race-neutral reason for firing Parries, i.e., his history of disciplinary problems, Parries was
required to “produce sufficient evidence from which the jury [could] reasonably reject the
employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083
(6th Cir. 1994). To make a showing of pretext, “the plaintiff is required to show by a
preponderance of the evidence either (1) that the proffered reasons had no basis in fact,
(2) that the proffered reasons did not actually motivate his discharge, or (3) that they were
insufficient to motivate discharge.” Id. at 1084 (citations omitted). Parries has not
challenged the factual accuracy of the disciplinary infractions and thus does not dispute
pretext under the first manner of showing. In order to show pretext via the second method,
“the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce
additional evidence of . . . discrimination.” Id. at 1084. At this point, the record does not
reflect the production of evidence above and beyond that required for a prima facie
showing, although the matter of the Brian Smith declaration remains to be resolved, see
Section B, infra. The third manner of showing pretext “ordinarily consists of evidence that
other employees . . . were not fired even though they engaged in substantially identical
conduct.” Manzer, 29 F.3d at 1084. Given that Parries could not demonstrate disparate
treatment, he did not satisfied the third method; he failed to show that any other employee
who engaged in the same pattern of infractions was not fired. See Warfield v. Lebanon
Corr. Inst., 181 F.3d 723, 730-31 (6th Cir. 1999) (holding that an employee fired for a series
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of incidents alleged to constitute misconduct must show that a similarly-situated employee
engaged in a comparably serious series of bad acts, not merely similar individual acts).
Given the current state of the record, and assuming that the defendant’s motion to
strike the Smith declaration was appropriately entered, we must conclude that Makino’s
motion for summary judgment was properly granted because Parries has not established
a prima facie case of discrimination based on circumstantial evidence, nor did he rebut as
pretextual the employer’s legitimate business reason for discharge. This conclusion,
however, rests as noted on the assumption that the Smith declaration was properly
disregarded by the district court in reaching its decision that the plaintiff’s second
termination was not the result of racial discrimination, an issue that we next consider.
B. The District Court’s Ruling on the Defendant’s Motion to Strike
In addition to attempting to demonstrate an inference of discrimination under the
McDonnell Douglas and Mitchell standards, Parries also argued that there was direct
evidence of racial animus underlying the 2001 termination. A plaintiff who can show direct
evidence of discrimination need not also show the four McDonnell Douglas elements or the
Mitchell disparate treatment standard. See Talley v. Bravo Pitino Restaurant, 61 F.3d
1241, 1248 (6th Cir. 1995). To meet his prima facie burden in this manner, the plaintiff
must present “credible, direct evidence of discriminatory animus,” and the lower court must
then specifically make a finding that plaintiff’s evidence is credible. See id. at 1248. Parries
did so in the form of a declaration by Brian Smith, who claimed to have heard supervisors
Ed Norris and Patrick Ruggiero use the term “nigger” in reference to Parries.
Makino filed a timely motion to strike Smith’s declaration under Federal Rule of Civil
Procedure 26 because the plaintiff had “failed to properly disclose the subject matter of Mr.
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Smith’s testimony in violation of his obligations under [Rule] 26 and this Court’s Scheduling
Order.” The district court did not rule on the merits of this motion, instead holding that the
motion was moot because “the Court has not made reference to the declaration[ ] of Brian
Smith.” In light of the importance of the Smith declaration to Parries’s case, the court’s
refusal to “refer” to the declaration could be interpreted as an implicit grant of Makino’s
motion to strike, based on a determination that the declaration was not filed in a timely
manner. However, the evidence is so clearly significant that the district court’s failure to
consider it without adequate explanation is at least puzzling and provides us with an
inadequate basis on which to review the decision. Because we are ordering a remand in
connection with the plaintiff’s retaliation claim, we direct the district court to make an explicit
ruling on the motion to strike and, if the result is a denial of the motion, to consider the
implications of the Smith declaration in terms of the plaintiff’s allegation that it establishes
a case of direct discrimination in connection with his June 2001 discrimination claim.
C. The Retaliation Claim
In addition to his discrimination claims, plaintiff brought a Title VII retaliation claim
against defendant Makino. “To make a prima facie case of Title VII retaliation, a plaintiff
must prove: (1) he engaged in activity protected by Title VII; (2) this exercise of protected
rights was known to defendant; (3) defendant thereafter took adverse employment action
against the plaintiff; and (4) there was a causal connection between the protected activity
and the adverse employment action.” Ford v. Gen. Motors Co., 305 F.3d 545, 552-53 (6th
Cir. 2002). Notably in this case, Sixth Circuit precedent provides that “[t]he burden of
establishing a prima facie case in a retaliation action is not onerous, but one easily met.”
Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
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Makino does not dispute that Parries has shown the first three elements of this test.
Makino knew that Parries filed a claim of discrimination with the Ohio Civil Rights
Commission in the wake of his 1999 termination, and Makino then terminated Parries’s
employment in June 2001. The question remaining is whether Parries has shown sufficient
evidence to raise a genuine issue of material fact as to the causal connection between his
filing of the civil rights claim with the Ohio commission and his discharge. To establish the
causal connection required by the fourth prong, a plaintiff must “put forth some evidence
to deduce a causal connection between the retaliatory action and the protected activity and
requiring the court to draw reasonable inferences from that evidence, provided it is
credible.” Id. at 566. In making this determination, the court must view the evidence in the
light most favorable to the non-movant and must draw all reasonable inferences in the non-
movant’s favor. See Ford, 305 F.3d at 555.
The allegedly retaliatory behavior against Parries began almost immediately after
his reinstatement at work. The Sixth Circuit has found timing to be a relevant factor in a
showing of causal connection. “Although ‘temporal proximity alone will not support an
inference in the face of compelling evidence’ to the contrary, ‘the proximity in time between
protected activity and adverse employment action may give rise to an inference of a causal
connection.” Ford, 305 F.3d at 554-55 (quoting Moon v. Transp. Drivers, Inc., 836 F.2d
226, 229 (6th Cir. 1987)). The relevant measure of time is the period between the
resumption of work after the protected activity and the termination. See Ford, 305 F.3d at
554-55. In Harrison v. Metropolitan Government, 80 F.3d 1107, 1119 (6th Cir. 1996), the
court held that a 15-month time gap was short enough to constitute “temporal proximity.”
Parries was fired by Makino less than 11 months after resuming his employment. Further,
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Parries claimed that the first retaliatory behavior occurred on August 16, 2000, a mere eight
days after he returned to work.
As the district court noted, however, in order to show causal connection, a plaintiff
must demonstrate some evidence of retaliatory conduct in addition to temporal proximity.
See Nguyen, 229 F.3d at 566. Although the district court found that there was no such
additional evidence in the record, our review convinces us that the plaintiff was arguably
subjected to excessive scrutiny of his conduct and “more frequent disciplinary writeups of
plaintiff for trivial matters,” which we have held to constitute evidence of retaliatory conduct.
Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Harrison, 80
F.3d at 1119 (“More important, however, is the fact that study of the record in this case
reveals an atmosphere in which the plaintiff’s activities were scrutinized more carefully than
those of comparably situated employees. . .”). The pattern of Parries’s treatment prior to
his 2001 termination indicates such heightened scrutiny and excessive discipline. For
example, in August 2000 supervisor Don Hoerlein twice “counseled” Parries for making
loud or strange noises while working. Parries contends that Hoerlein’s accusations were
false, but even if true, they indicate that Parries was being disciplined for basically “trivial
matters.” In November of the same year, Hoerlein suspended Parries for five days for
being away from his work station without permission. Makino later rescinded the
suspension and granted him back pay, issuing Parries merely a “final warning” as his
punishment.
Parries was disciplined again, in January 2001, when he improperly recorded his
time. Parries claimed that several other co-workers made similar errors, but that Makino
rescinded their discipline after the employees questioned the action. Parries also
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challenged his discipline, but the company upheld it. Parries cannot make a claim of
disparate treatment under McDonnell Douglas in regard to this incident because he has not
adequately shown that he was similarly-situated to his co-workers, but he may use the
incident as evidence of retaliation without having to meet the similarly-situated standard.
See Little, 265 F.3d at 365 (crediting that plaintiff was treated more harshly than co-workers
even without evidence that the co-workers were under the same supervisor or had a similar
disciplinary history or level of misconduct).
We recognize that a jury could find that the close supervision Parries received after
his earlier discharge was the result of his history of disciplinary problems leading up to the
1999 dismissal. On the other hand, he was reinstated following post-discharge arbitration,
and a jury could also find that the ensuing level of scrutiny leading up to the dismissal in
2001 was unjustified in terms of the relatively minor nature of the alleged misconduct it
revealed. We conclude that the existence of excessive scrutiny and the reason for it
created a dispute of material fact that was not properly resolved by a grant of summary
judgment on the plaintiff’s retaliation claim.
Moreover, the plaintiff has also identified another factor that is pertinent to the
determination of causal connection in the retaliation setting, and that is increased workload.
See Ford, 305 F.3d at 555. Parries alleged that supervisor Ed Morris assigned him a
disproportionately high number of the difficult jobs and that this overload in his assignments
resulted in Parries’s poor work performance. However, the only evidence to support this
allegation comes from the declaration of Brian Smith, which, as noted above, was not
considered by the district court. If, on remand, it turns out that the Smith declaration should
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have been considered in the context of the plaintiff’s discrimination claims, it would also be
relevant to the retaliation claim.
Finally, Parries presented evidence that Makino supervisors discouraged the filing
of grievances and threatened to take retaliatory action against employees who filed them.
In a memo written by Ed Morris requesting that Parries be removed from his supervision
or fired, Morris cited Parries’s history of filing grievances as problematic behavior.
Similarly, supervisor Hoerlein warned white employee Farmer that the company would
“take care of the problem” if Farmer continued to file grievances. Although all of Farmers’s
grievances and some of Parries’s were not based on race and thus were not protected
actions, Parries asserts that this shows a willingness on the part of Makino to punish
employees for making grievances. The Sixth Circuit has found that a supervisor’s
comments indicating an intent to run employees out of his department, combined with the
fact that several employees feared retaliation if they testified at a hearing, sufficiently
established a prima facie case of retaliation. See Harrison, 80 F.3d at 1119. While it
appears that Parries’s situation was not as compelling as the one in Harrison, we conclude
that the two situations are similar enough that Hoerlein’s threats should be considered
evidence that suggests retaliation.
CONCLUSION
For the reasons set out above, we conclude that this case must be remanded to
permit the district court to rule on the merits of the defendant’s motion to strike the
declaration of Brian Smith, filed as an exhibit to the plaintiff’s memorandum in opposition
to the defendant’s motion for summary judgment. That ruling will have an impact on the
tentative conclusions that we have drawn concerning the viability of the plaintiff’s
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discrimination claims, in terms both of direct evidence of racial discrimination and of
evidence of pretext to rebut the defendant’s claim that its actions with regard to the
plaintiff’s employment were based on a legitimate business decision. Finally, we conclude
that the defendant is not entitled to summary judgment on the plaintiff’s claim of retaliation,
and we remand the case for further proceedings as to that claim, based on a pattern of
disciplinary actions that were arguably the result of protected activity on the plaintiffs’ part,
as well as the temporal proximity between that protected activity and the plaintiff’s dismissal
in June 2001.
REVERSED AND REMANDED.
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