Robert Bledsoe v. TVA Bd. of Directors ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0164p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
ROBERT BLEDSOE,
│
Plaintiff-Appellant, │
> No. 21-5808
│
v. │
│
TENNESSEE VALLEY AUTHORITY BOARD OF │
DIRECTORS, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:20-cv-00029—Clifton Leland Corker, District Judge.
Argued: March 17, 2022
Decided and Filed: July 27, 2022
Before: MOORE, COLE, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Douglas S. Hamill, Chattanooga, Tennessee, for Appellant. Kathleen Keough
Griebel, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee.
ON BRIEF: Douglas S. Hamill, Chattanooga, Tennessee, for Appellant. Kathleen Keough
Griebel, David D. Ayliffe, Lamont A. Belk, TENNESSEE VALLEY AUTHORITY, Knoxville,
Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court in which COLE, J., joined.
NALBANDIAN, J. (pp. 25–30), delivered a separate dissenting opinion.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Robert Bledsoe, a nuclear-plant operator
working for the Tennessee Valley Authority (TVA), alleges that the Authority discriminated
against him based on his age and disability in violation of the Age Discrimination in
Employment Act (ADEA) and the Rehabilitation Act. Citing ethical concerns that arose when
Bledsoe’s son was accepted to the training program that Bledsoe taught, a committee overseeing
the training center voted to demote Bledsoe from his instructor position. One of the members of
the committee, Bledsoe’s supervisor, had repeatedly made disparaging remarks about Bledsoe’s
age and disability in the months prior to the committee’s decision. A reasonable jury could
conclude that Bledsoe’s supervisor used the ethical concern as a pretext to convince the other
members of the committee to demote him. We REVERSE the district court’s judgment and
REMAND for further proceedings.
I. BACKGROUND
Bledsoe has worked at the TVA, a federally owned corporation that provides utilities to
the Tennessee Valley region, since 1985. R. 30-6 (Bledsoe Dep. at 48–49) (Page ID #551);
16 U.S.C. § 831. TVA operates two nuclear plants in Tennessee: the Sequoyah Nuclear
Plant and the Watts Bar Nuclear Plant. Nuclear, Tennessee Valley Authority,
https://www.tva.com/energy/our-power-system/nuclear (last visited February 4, 2022). For most
of Bledsoe’s career at the TVA, he has worked as an Assistant Unit Operator (AUO) at the
Sequoyah Nuclear Plant. R. 30-6 (Bledsoe Dep. at 50–51) (Page ID #552).
The TVA runs two types of training programs at their nuclear plants: one for AUOs, who
are not licensed, and one for licensed training operators. R. 30-1 (Dahlman Dep. at 40) (Page ID
#249); R. 30-6 (Bledsoe Dep. at 60) (Page ID #554). Only licensed training operators may teach
the courses for licensed operators. R. 30-6 (Bledsoe Dep. at 60) (Page ID #554). The AUO
training program has two types of courses. An AUO must initially complete the Nuclear Student
Generation Plant Operating (NSGPO) training course. R. 30-5 (Williams Dep. at 15–16) (Page
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 3
ID #476–77). Throughout the year, an AUO must also complete Non-Licensed Operator
Requalification (NLOR) courses to keep requirements up to date. Id. at 17–18 (Page ID #478–
79). Each nuclear plant at the TVA has a local joint training subcommittee (the Committee),
which oversees the NLOR and NSGPO programs. Id. at 19–20 (Page ID #480–81).
In May 2015, the Committee appointed Bledsoe to be an NSGPO instructor. R. 30-6
(Bledsoe Dep. at 51) (Page ID #552). In that role, Bledsoe developed lessons, exams, and course
materials. R. 30-1 (Dahlman Dep. at 58) (Page ID #254). Bledsoe collaborated with both
licensed and non-licensed instructors in all the training programs. R. 30-6 (Bledsoe Dep. at 59)
(Page ID #554); R. 30-4 (Bailey Dep. at 80–81) (Page ID #412–13). Jeremy Bailey oversaw
Bledsoe’s day-to-day activities in the non-licensed training program. R. 30-4 (Bailey Dep. at
34–35) (Page ID #366–67). Beginning in January 2017, Christopher Dahlman, Bailey’s
supervisor, managed all training programs at the Sequoyah Training Center as the Operations
Training Manager. R. 30-1 (Dahlman Dep. at 39–40, 58) (Page ID #249, 254).
Bledsoe took medical leave in October 2016 to manage his liver cirrhosis. R. 24-1
(Bledsoe Decl. ¶ 3, 6) (Page ID #165–66). In February 2017, Bledsoe returned to work after
receiving a liver transplant. R. 30-6 (Bledsoe Dep. at 63–64) (Page ID #555). Bledsoe’s
condition required him occasionally to use a cane and to take medications, which he kept on his
desk. Id. at 18, 63, 67 (Page ID #544, 555–556).
Shortly after Bledsoe returned to work, Dahlman began to comment on Bledsoe’s health
and age. Id. at 160–61 (Page ID #579). Beginning in April 2017 and continuing into January
2018, Dahlman berated Bledsoe about his disability and pressured him to retire. Id. at 160–64
(Page ID #579–80). The following incidents are only some examples of Dahlman’s behavior:
• After asking Bledsoe to show him his progress in updating lesson plans,
Dahlman told Bledsoe, “if you’re not at 100 percent, I can’t use you.” Id. at
15 (Page ID #543). Dahlman then asked Bledsoe about the medications that
Bledsoe kept on his desk. When Bledsoe explained that the medications
treated his liver condition, Dahlman repeated, “[y]ou’ve got to be 100 percent
for this job.” Id. at 15–17 (Page ID #543). This was not the only time that
Dahlman asked Bledsoe about his medications and their effect on his job. Id.
at 19 (Page ID #544). One day, after asking Bledsoe to remove his
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 4
medications from his desk, Dahlman asked Bledsoe, “[j]ust how disabled are
you?” Id. at 22 (Page ID #545).
• While discussing lesson plans in November 2017, Dahlman again asked
Bledsoe, “[a]re you 100 percent yet?” When Bledsoe responded that he was
“getting there,” Dahlman replied, “[t]hat’s not good enough . . . I’m tired of
disabilities and I’m tired of medical problems.” Id. at 31 (Page ID #547).
• Dahlman asked Bledsoe whether he had other disabilities, demanded that
Bledsoe tell him about them “in detail,” and asked Bledsoe whether he was
“eligible for disability.” Id. at 15, 17, 19 (Page ID #543–44). After Bledsoe
told Dahlman about some of his medical problems, Dahlman responded that
he was not “running a rehabilitation clinic.” Id. at 16 (Page ID #543).
• Dahlman asked Bledsoe his age and told him numerous times that he should
consider retiring. Id. at 16–17 (Page ID #543). These suggestions eventually
turned into a command. Dahlman told Bledsoe, “you need to go ahead and
retire . . . . I’m concerned about this disability you have, your condition with
your liver.” Id. at 21 (Page ID #544).
• In October 2017, after asking about Bledsoe’s lesson planning progress,
Dahlman commented, “I think your disability is slowing all this down. . . .
You’re really too old to be doing this.” Id. at 24–25 (Page ID #545).
• In January 2018, Dahlman questioned Bledsoe’s ability to teach. Again, after
discussing Bledsoe’s lesson-plan progress, Dahlman asked, “Are you even
going to be able to teach? . . . I wouldn’t think with your condition and—your
medical condition and your age that you would want to teach.” Id. at 40–41
(Page ID #549).
• Dahlman also warned Bledsoe multiple times not to “piss [him] off,” telling
Bledsoe that he was “vindictive” and “not patient.” Id. at 25, 39 (Page ID
#545, 549). On one occasion, Dahlman told Bledsoe, “if you piss me off,
you’re not going to be working over here. I’m just telling you.” Id. at 39(Page ID #549).
TVA employees observed Dahlman make similar comments related to age or disability about
Bledsoe and others. R. 33-4 (Painter Decl. ¶ 6–7) (Page ID #832); R. 33-2 (Allen Decl. ¶ 6–7)
(Page ID #826).
Bledsoe at first hesitated to notify human resources about the comments because he was
afraid of Dahlman, who had previously physically and emotionally intimidated him. R. 30-6
(Bledsoe Dep. at 159–60) (Page ID #579). Around November 27, 2017, however, Bledsoe
reported these incidents in a meeting with Bailey; Megan Markum, a human resources generalist;
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 5
and David Williams, the union vice president. Id. at 158–59, 163 (Page ID #579–80); R. 30-11
(Markum Dep. at 7) (Page ID #616). Markum responded that Bledsoe should not worry because
she and Dahlman were friends and that she “d[idn’t] think he would do anything.” R. 30-6
(Bledsoe Dep. at 37) (Page ID #548). A few days later, Bailey told Bledsoe that he had relayed
Bledsoe’s complaint to Dahlman and that Dahlman was angry about it. Id. at 38–39 (Page ID
#549). In December 2017, Bailey told Bledsoe, “I’m afraid [Dahlman] is going to try to get you
out of here because he’s really pissed off about you going and talking to HR.” Id. at 169 (Page
ID #581).
Meanwhile, in November 2017, Bledsoe’s son Hudson had applied for a position in the
NGSPO classes offered both at Sequoyah and Watts Bar. R. 30-1 (Dahlman Dep. at 80–81)
(Page ID #259–60). On an employment form that asked him to rank his location preferences,
Hudson indicated that he preferred a position at the Sequoyah Nuclear Plant, but that he was
willing to accept employment at either location. R. 30-13 (Hudson Bledsoe Employment
Affirmation) (Page ID #670). Hudson “informed the union rep that [he] would appreciate it if
[he] could work at Sequoyah because of the drive but that [he] was ready to go to either plant.”
R. 30-18 (Hudson Bledsoe Decl.) (Page ID #724). TVA offered Hudson a position in the
NSGPO training program at Sequoyah, and Hudson was expected to begin the program in March
2018. See R. 30-11 (Markum Dep. at 64, 114) (Page ID #630, 643). Bledsoe was scheduled to
teach that same class. R. 30-16 (Michael Dep. at 41–42) (Page ID #689).
Recognizing the potential conflict of interest, Bledsoe asked Dahlman and Bailey if his
son’s joining the program would present a problem. R. 30-6 (Bledsoe Dep. at 132–33) (Page ID
#572). Dahlman told Bledsoe not to “worry about it,” but that Bledsoe could teach the NLOR
program while his son was in the NSGPO program if there were an issue. Id.Separately, a couple of months before this conversation, Kevin Michael, an operations
management representative, had seen a list of NSGPO interview candidates and generally voiced
concerns with other leaders in the operations department about familial conflicts in the class.
R. 30-16 (Michael Dep. at 46–47, 52) (Page ID #690–92). Michael asked Markum to seek an
ethics opinion after Hudson Bledsoe’s interview. Id. at 54 (Page ID #692); R. 30-11 (Markum
Dep. at 38) (Page ID #624).
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 6
On November 20, 2017, Markum emailed Janda Brown, the TVA Director of Ethics and
Compliance. Markum told Brown that a current AUO’s son would be offered a job in the
NSGPO class. R. 30-14 (11/20/2017 Email from Markum to Brown) (Page ID #673). Markum
also stated that there were “discussions about bringing over a Reactor Operator to help teach this
class. His son will also be offered a job.” Id. By the Reactor Operator, Markum was referring
to Roger Brown, an employee who expressed interest in becoming an NGSO instructor, and
whose son was supposed to enter the NGSO program. R. 30-16 (Michael Dep. at 67–68) (Page
ID #696). Markum did not seek an opinion regarding the possibility of transferring Bledsoe to
the NLOR program or the propriety of having an AUO teaching another non-licensed training
class that his son was not in. R. 30-11 (Markum Dep. at 45–46) (Page ID #626). Dahlman and
Bailey had told her that transfer was not a “viable option.” Id.Janda Brown responded the next day, explaining that “it would be necessary for
management to assign an AUO and [Reactor Operator] who do not have family members in the
Student Generating Operating Plant class.” R. 30-14 (11/21/2017 Email from Brown to
Markum) (Page ID #672). Markum forwarded this response to Dahlman and Michael, stating
that “Bledsoe, Roger Brown and anyone else who has an immediate family member is not
eligible to work on SGPO.” R. 30-14 (11/21/2017 Email from Markum to Dahlman and
Michael) (Page ID #672). Dahlman forwarded this email to Bailey, remarking, “[l]ooks like
solution will happen sooner rather than later.” R. 30-2 (11/21/2017 Email from Dahlman to
Bailey) (Page ID #296). Dahlman later testified that his comment about a “solution” was
referring to performance issues Bledsoe had been having. R. 30-1 (Dahlman Dep. at 122–23)
(Page ID #270).
On November 30, 2017, the Committee met to discuss the TVA’s ethics opinion. R. 30-
11 (Markum Dep. at 54–55) (Page ID #628). The Committee was composed at the time of a
training manager (Dahlman), a human resource representative (Markum), a union representative
(Williams), and a management representative (Michael).1 R. 30-5 (Williams Dep. at 28–30)
1Dennis Dimopoulos was the official management representative as operations manager, but Dimopoulos
often designated Michael, the operations superintendent, to participate in the Committee meetings. R. 30-5
(Williams Dep. at 28–29) (Page ID #489–90); R. 30-1 (Dahlman Dep. at 66) (Page ID #256); R. 30-4 (Michael Dep.
at 33–34) (Page ID #687). Although Dimopoulos appears to have voted in favor of Bledsoe’s demotion, R. 30-20
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 7
(Page ID #489–91); R. 30-1 (Dahlman Dep. at 66) (Page ID #256). At this meeting, Dahlman
and Markum insisted on removing Bledsoe from any non-licensed training program. R. 33-3
(Smith Decl. ¶ 8) (Page ID #829). Williams, who was Dahlman’s union representative, proposed
that Bledsoe be reassigned to the NLOR program, and Michael agreed. R. 30-5 (Williams Dep.
at 33–35) (Page ID #494–96); R. 33-3 (Smith Decl. ¶ 8) (Page ID #829). Discussions continued
for several weeks, during which Williams continued to advocate for Bledsoe’s transfer. R. 30-5
(Williams Dep. at 36, 44–45) (Page ID #497, 505–06). On February 24, 2018, the
Committee unanimously voted via email to remove Bledsoe from his instructor position. R. 30-
20 (2/24–2/27/2018 Committee Email Chain) (Page ID #729–32). Bledsoe was fifty-eight years
old at the time of his demotion, which went into effect on March 4, 2018, and reduced his salary
by about $28,000. R. 33-1 (Second Bledsoe Decl. ¶ 3) (Page ID #824); R. 30-20 (2/24–
2/27/2018 Committee Email Chain) (Page ID #729); R. 33-6 (Bledsoe Compensation Records)
(Page ID #834–35).
After filing a formal complaint with TVA’s Equal Opportunity Commission, Bledsoe
filed a complaint in district court, alleging violations of the ADEA and Rehabilitation Act. R. 1
(Compl. ¶ 30–35, 36) (Page ID #7–8). TVA moved for summary judgment, which the district
court granted, dismissing all of Bledsoe’s claims. Bledsoe v. Tennessee Valley Auth. Bd. of
Dirs., No. 1:20-CV-00029-DCLC, 2021 WL 3612699, at *1 (E.D. Tenn. Aug. 13, 2021).
Bledsoe timely appeals.
II. ANALYSIS
We review de novo a district court’s grant of summary judgment. Willard v. Huntington
Ford, Inc., 952 F.3d 795, 805 (6th Cir. 2020). Summary judgment is inappropriate if there is a
“genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). When evaluating a summary-
judgment grant, “[w]e must view all of the facts in the light most favorable to the nonmoving
party and draw all justifiable inferences in the nonmoving party’s favor.” Willard, 952 F.3d at
805–06. In doing so, we must leave to a jury “[c]redibility determinations, the weighing of the
(2/27/2018 Email from Dimopoulos to Committee) (Page ID #731), neither party argues, and the record does not
reflect, that Dimopoulos participated meaningfully in the Committee’s decision.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 8
evidence, and the drawing of legitimate inferences from the facts.” Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
A. ADEA and Rehabilitation Act Framework
Under the ADEA, an employer may not “discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff may prove an ADEA violation through
direct or indirect evidence of discrimination, but “[n]o matter the type of evidence presented, the
plaintiff retains the burden of persuasion to demonstrate ‘by a preponderance of the evidence . . .
that age was the ‘but-for’ cause of the challenged employer decision.’” Willard, 952 F.3d at 806
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, (2009)).2 “To establish a prima
facie case of age discrimination, a plaintiff must show: ‘(1) membership in a protected group;
(2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances
that support an inference of discrimination.’” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283
(6th Cir. 2012) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).
Similar standards apply to Rehabilitation Act claims. Jones v. Potter, 488 F.3d 397, 403–
04 (6th Cir. 2007). The Rehabilitation Act forbids discrimination based on disability, and a
plaintiff may prove a Rehabilitation Act violation through direct or indirect evidence. Id. To
establish a prima facie case, a plaintiff must show “(1) that he is disabled, (2) that he is otherwise
qualified for the job, with or without reasonable accommodation, (3) that he suffered an adverse
employment action, (4) that his employer knew or had reason to know of his disability, and
(5) that, following the adverse employment action, either he was replaced by a nondisabled
person or his position remained open.” Id. at 404.
The parties do not challenge these frameworks but disagree on the causality standard.
Bledsoe brings his claim under § 501 of the Rehabilitation Act, 29 U.S.C. § 791, which applies
to federal employees. Bledsoe urges us to distinguish between the causation standard for claims
2The but-for causation standard applies only to Bledsoe’s claim for backpay and compensatory damages
under the ADEA. See Babb v. Wilkie, 140 S. Ct. 1168, 1177–78 (2020). To establish that he is entitled to injunctive
relief, Bledsoe need only show that “age discrimination play[ed] any part” in the decision to demote him. Id. at
1174, 1178.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 9
brought under § 501 and that for claims brought under § 504 of the Act. Under § 504, an
employer receiving federal funds cannot discriminate “solely by reason of [an employee’s]
disability.” 29 U.S.C. § 794(a). This language is absent from § 501. Because “solely” does not
appear in § 501, Bledsoe argues, plaintiffs bringing § 501 claims need not satisfy this stringent
causation standard. TVA argues that § 504’s “solely by reason of” standard applies to all
Rehabilitation Act claims, no matter which section.
To understand the differences between § 501 and § 504 of the Rehabilitation Act, we first
examine the Act’s structure and history. As the First Circuit has helpfully explained, in the first
iteration of the Act, § 501 required that federal agencies adopt affirmative-action plans to hire
and advance opportunities for individuals with disabilities. Bartlett v. Dep’t of the Treasury
(I.R.S.), 749 F.3d 1, 5 (1st Cir. 2014). Section 504 prohibited private entities receiving federal
funds from discriminating “solely by reason of” the disability. Id. at 5–6. Although neither
section contained a private cause of action for federal employees at the time, all courts
interpreting the Rehabilitation Act read an implied right of action into § 504, but not § 501. Id.
at 6.
Congress then codified a private right of action for federal employees under the
Rehabilitation Act, but it did so in a “less than artful manner.” Id. (quoting Spence v. Straw, 54
F.3d 196, 199 (3d Cir. 1995)). The Senate added § 505 to the Rehabilitation Act, 29 U.S.C.
§ 794a, which extended the remedies available under Title VII of the Civil Rights Act (including
a private cause of action for damages) to federal employees who brought claims under § 501. Id.
This amendment also extended the remedies available under Title VI of the Civil Rights Act to
claims brought under § 504. Id. at 6–7. At the same time, the House amended § 504 to prohibit
not only entities receiving federal assistance but also “any program or activity conducted by an
Executive agency or by the United States Postal Service” from discriminating “solely by reason
of” disability. Id. at 7 (quotations omitted). Thus, as the Fifth Circuit has explained, “[t]he
amendments to section 504 were simply the House’s answer to the same problem that the Senate
saw fit to resolve by strengthening section 501.” Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304
(5th Cir. 1981). Congress “could have chosen to eliminate the partial overlap between the two
provisions, but instead . . . chose to pass both provisions, despite the overlap.” Id.No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 10
Given this overlap, some circuits have recognized only one cause of action under § 501
of the Rehabilitation Act. See Pinkerton v. Spellings, 529 F.3d 513, 515 (5th Cir. 2008) (noting
circuit split). We have distinguished the two sections, however, and long held that “federal
employees . . . alleging [disability] discrimination in employment may maintain private causes of
action against their employers under both sections 501 and 504 of the Rehabilitation Act.” Hall
v. U.S. Postal Serv., 857 F.2d 1073, 1077–78 (6th Cir. 1988).
We have never addressed whether § 504’s sole-cause standard applies to § 501 claims.
As TVA points out, in Lewis v. Humboldt Acquisition Corp., we distinguished between
Americans with Disabilities Act (ADA) claims and Rehabilitation Act claims, holding that a
“but-for” causality standard applies to ADA claims and that a “sole-cause” standard applies to
Rehabilitation Act claims. 681 F.3d 312, 317, 321 (6th Cir. 2012) (en banc). But the plaintiff in
Lewis, an employee of a private entity, could bring only a § 504 claim. Id. at 314. We therefore
did not analyze any differences between the two types of claims. Although we have since
applied Lewis’s sole-cause standard in unpublished cases with federal-employee plaintiffs, those
cases likewise did not distinguish between § 501 and § 504 claims. See, e.g., Kaminsky v.
Wilkie, 856 F. App’x 602, 602, 604–05 (6th Cir. 2021); Bent-Crumbley v. Brennan, 799 F.
App’x 342, 344–45 (6th Cir. 2020) (per curiam).
The only court to address this issue directly has interpreted the statute in Bledsoe’s favor.
Pinkerton, 529 F.3d at 516; see also Dank v. Shinseki, 374 F. App’x 396, 399 n.4 (4th Cir. 2010)
(noting that issue remains unresolved in all but one circuit). In Pinkerton, the Fifth Circuit
looked to § 501(g) of the Rehabilitation Act (now codified at § 501(f)), which incorporates ADA
standards “to determine whether this section has been violated,” to apply the ADA’s causality
standard to § 501 claims. 529 F.3d at 516–17. Noting that the ADA, which was passed in 1990,
excludes the federal government from coverage, the court reasoned that the 1992 Rehabilitation
Act Amendments sought to expand ADA protections to federal employees. Id. at 517. The court
also observed that Equal Employment Opportunity Commission regulations implementing § 501
of the Rehabilitation Act incorporate ADA standards. Id.
The Fifth Circuit’s reasoning persuades us that § 504’s sole-cause standard does not
apply to claims brought under § 501. Causality is clearly a “standard[] used to determine
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 11
whether [§ 501] . . . has been violated,” so § 501(f) instructs us to apply ADA causality
standards. 29 U.S.C. § 791(f). Although TVA argues that we should look to the more specific
standards of causality governing § 504 claims, we, like the Fifth Circuit, see no reason to borrow
from § 504 when § 501 already describes the relevant standard.
As the court in Pinkerton noted, § 501 and § 504 sensibly employ different causality
standards because they are distinct sections of the Rehabilitation Act. 529 F.3d at 517. The
Supreme Court recognized this distinction when it observed that a plaintiff may recover
monetary damages under § 501, and not § 504, because Congress waived its sovereign immunity
with respect to only the former section. See Lane v. Pena, 518 U.S. 187, 193 (1996). The
sections’ discrete purposes further explain their differences: § 501 imposes an “affirmative
action obligation [that] goes beyond the obligation set forth in [§] 504, which, by its terms,
requires only non-discrimination.” Hall, 857 F.2d at 1077. This “duty” that Congress chose to
impose upon only federal employers under § 501, id. (quoting Prewitt, 662 F.2d at 306),
logically renders it easier for federal employees to prove discrimination than for private-entity
employees. Considering Congress’s belt-and-suspenders approach to expanding federal
employees’ rights, we decline to hold federal employees to a more stringent causality standard
than employees of private entities receiving federal funding.
Congress has clearly delineated two separate causes of action under two separate
provisions of the Rehabilitation Act. See Hall, 857 F.2d at 1077. Under the ADA and § 501, a
plaintiff must show that discrimination was a “but-for” cause of the adverse employment action.
Lewis, 681 F.3d at 321. Applying this standard here, federal-employee plaintiffs like Bledsoe
who bring § 501 claims must show that they would not have been subject to the adverse action
but for the discrimination.
B. Direct Evidence of Discrimination
Having determined the proper causality standard, we turn to the evidence that Bledsoe
offers to support his discrimination claims. To show that age or disability discrimination was a
“but-for” cause under either the ADEA and Rehabilitation Act, Bledsoe may use either direct or
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 12
indirect evidence. Willard, 952 F.3d at 806 (ADEA); Jones, 488 F.3d at 409 (Rehabilitation
Act).
Bledsoe first argues that Dahlman’s statements are direct evidence of age and disability
discrimination. “Direct evidence is ‘evidence that proves the existence of a fact without
requiring any inferences.’” Willard, 952 F.3d at 806 (quoting Blair v. Henry Filters, Inc., 505
F.3d 517, 523 (6th Cir. 2007)). The evidence, on its own, must lead a reasonable juror to
conclude that a decisionmaker was biased, and that adverse animus motivated the adverse action.
See Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 530 (6th Cir. 2014).
Dahlman’s statements—especially those questioning Bledsoe’s ability to teach due to his
age and disability—would arguably constitute direct evidence of unlawful discrimination had the
extent of his influence on the Committee been obvious. See Willard, 952 F.3d at 806–07.
Discriminatory remarks, however, are direct evidence of discrimination only when they come
from a supervisor with at least a “meaningful role in the decisionmaking process.” Bartlett v.
Gates, 421 F. App’x 485, 489 (6th Cir. 2010). For example, a biased supervisor’s unilateral
recommendation to a manager with dismissal authority to fire a plaintiff constitutes direct
evidence. DiCarlo v. Potter, 358 F.3d 408, 416 (6th Cir. 2004). By contrast, Dahlman’s
statements and his supervisory status alone do not compel a discrimination finding because
multiple persons with various degrees of influence participated in the ultimate decision.
Although Dahlman participated in the decision to demote Bledsoe, a jury would have to take
inferential steps to determine the scope of Dahlman’s role in that decision. To prevail, Bledsoe
must therefore offer indirect evidence of discrimination.
C. Indirect Evidence of Discrimination
When a plaintiff presents indirect evidence in support of an ADEA or a Rehabilitation
Act claim, the McDonnell Douglas burden-shifting framework governs. See Pelcha v. MW
Bancorp, Inc., 988 F.3d 318, 326 (6th Cir. 2021); Jones, 488 F.3d at 403–04. Under that
framework, if a plaintiff presents sufficient evidence of a prima facie case of discrimination, an
employer must offer a nondiscriminatory reason for the adverse action. Sloat v. Hewlett-
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 13
Packard Enter. Co., 18 F.4th 204, 209 (6th Cir. 2021). The plaintiff then must demonstrate that
the employer’s reason is a pretext for discrimination. Id.TVA does not contest that Bledsoe has established a prima facie case of discrimination.
Instead, TVA argues that ethical concerns justified Bledsoe’s demotion and that Bledsoe has
failed to show that those concerns were pretextual. To demonstrate pretext, Bledsoe must show
that the ethical concerns “(1) had no basis in fact; (2) did not actually motivate the adverse
action; or (3) w[ere] insufficient to warrant” the demotion. Wyatt v. Nissan N. Am., Inc., 999
F.3d 400, 421 (6th Cir. 2021). Bledsoe argues that he has provided evidence of the latter two
factors—that the ethics concern did not actually motivate or warrant the decision to demote him.
Bledsoe first points to the remarks themselves. “[D]iscriminatory remarks, even by a
nondecisionmaker, can serve as probative evidence of pretext.” Risch v. Royal Oak Police
Dep’t, 581 F.3d 383, 393 (6th Cir. 2009); see also Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 354–55 (6th Cir. 1998). We take no inferential leap in concluding that Dahlman’s
litany of ageist and ableist insults—numerous inquiries about Bledsoe’s retirement,
proclamations about not “running a rehabilitation clinic,” invasive questions about his
medications and his cane, and encouragement that Bledsoe file for disability—exhibited age and
disability discrimination.
A juror could further infer that Dahlman desired that Bledsoe stop teaching. Dahlman
believed that Bledsoe’s disability “slow[ed]” down his lesson planning and that Bledsoe was
“too old” to be teaching. R. 30-6 (Bledsoe Dep. at 24–25) (Page ID #545). In fact, Dahlman
admitted that Bledsoe’s demotion was his “wish at the time,” and that his demotion would be a
welcome “solution.” R. 30-1 (Dahlman Dep. at 117–18) (Page ID #269); R. 30-2 (11/21/2017
Email from Dahlman to Bailey) (Page ID #296). A reasonable juror could reject Dahlman’s
explanation for these comments—that he was displeased with Bledsoe’s performance, R. 30-1
(Dahlman Dep. at 118) (Page ID #269)—and credit Bledsoe’s explanation, that Dahlman was
pleased because he thought Bledsoe was too old and disabled to keep his position.
From these facts, a juror could infer that Dahlman’s bias motivated his wish that Bledsoe
stop teaching. “We must therefore determine whether a reasonable jury could conclude that
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 14
[Dahlman] was in a position to influence the alleged decision” to demote Bledsoe. Ercegovich,
154 F.3d at 355. In support, Bledsoe invokes a variation on a vicarious-liability theory called the
“cat’s paw” theory. Under that theory, a plaintiff “seeks ‘to hold his employer liable for the
animus of a supervisor who was not charged with making the ultimate employment decision.’”
Marshall v. The Rawlings Co., 854 F.3d 368, 377 (6th Cir. 2017) (quoting Staub v. Proctor
Hosp., 562 U.S. 411, 415 (2011)). We have previously applied the cat’s paw theory to hold an
employer liable when a biased employee influenced a committee’s employment action. See
DeNoma v. Hamilton Cnty. Ct. of Common Pleas, 626 F. App’x 101, 106–08 (6th Cir. 2015). In
this context, Bledsoe must show that Dahlman “was the driving force” behind the Committee’s
decision to demote him. Wyatt, 999 F.3d at 421. In short, a reasonable juror must be able to find
that Dahlman proximately caused Bledsoe’s demotion. See Sloat, 18 F.4th at 210.
When a decisionmaker relies on a biased employee’s knowledge about the employee
subject to an adverse action, a jury may reasonably infer that the biased employee proximately
caused the adverse action. For example, in Gutzwiller v. Fenik, a defendant’s discriminatory
intent “more likely than not” caused the plaintiff’s denial of tenure. 860 F.2d 1317, 1327 (6th
Cir. 1988). In that case, members of a university committee that denied plaintiff tenure “lacked
the expertise to properly judge [plaintiff’s] work and, therefore, relied exclusively upon the
opinion of” the committee chairman, who had exhibited discriminatory animus. Id. More
recently, we held that a biased employee proximately caused an adverse action when a
supervisor who had little knowledge about the plaintiff’s capabilities relied upon the biased
employee’s information. Sloat, 18 F.4th at 212–13.
Bledsoe similarly presents sufficient evidence that Dahlman influenced the three other
members of the Committee because they deferred to his opinion. Markum, the human resources
specialist, “relied heavily” on Dahlman and Bailey’s opinion to conclude that only demotion
could resolve the ethics issue. R. 30-11 (Markum Dep. at 42–43) (Page ID #625). Because
Dahlman and Bailey told her that it was not “a viable option,” Markum did not ask the ethics
department if Bledsoe’s or his son’s transfer would cure the ethics issue. Id. at 45–46 (Page ID
#626). Markum’s reliance was based not only on Dahlman’s role as a training specialist, but also
on her personal friendship with Dahlman. When Bledsoe complained to Markum about
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 15
Dahlman’s comments, Markum told Bledsoe that she and Dahlman were friends and that she
“[didn’t] think he would do anything.” R. 30-6 (Bledsoe Dep. at 35–37) (Page ID #548). In fact,
Dahlman had told Bledsoe that he had previously discussed with Markum that Bledsoe should
file for disability. Id. at 27–28 (Page ID #546). A reasonable juror could thus find that Dahlman
influenced Markum to demote Bledsoe to the exclusion of other options.
A juror could also find that Dahlman’s influence did not stop with Markum because
Michael and Williams either deferred to Dahlman’s judgment, were intimidated by Dahlman, or
otherwise were influenced by him. Beginning with Michael, a jury could find that Michael
deferred to Dahlman on the decision to demote Bledsoe. Michael did not have responsibilities
over the training center. R. 30-11 (Markum Dep. at 45–46) (Page ID #626). Michael was never
an instructor or manager in the Sequoyah Training Center program, had no direct supervision
responsibilities in the program, and testified that Dahlman and Bailey knew more about training
than he did. R. 30-16 (Michael Dep. at 60–61) (Page ID #694). As the dissent notes, Michael
did have first-hand knowledge about training operations from his time as a student and about
labor-related issues from his role as operations superintendent. Dissent Op. at 27–28. Michael
also provided during his deposition an entirely reasonable explanation, rooted in the ethics
concerns, for Bledsoe’s demotion. Id.
The record, however, reveals a few reasons to view with skepticism Michael’s testimony
that he was independently concerned about the ethics issue from the start. For example,
according to Bledsoe, Bledsoe asked Michael about his son’s participation in NGSPO during his
son’s interview process. R. 30-6 (Bledsoe Dep. at 134) (Page ID #573). Michael asked Bledsoe
what Dahlman thought, and when Bledsoe responded that Dahlman said the conflict would not
be an issue, Michael told Bledsoe not to “worry about it.” Id. Moreover, a participant in a
Committee meeting testified that Michael initially voiced support for transferring Bledsoe to
NLOR rather than removing Bledsoe from the training program. R. 33-3 (Smith Decl. ¶ 8) (Page
ID #829). Michael denied ever opposing Bledsoe’s removal. R. 30-16 (Michael Dep. at 73–74)
(Page ID #697). Finally, Dahlman told Michael about Bledsoe’s “performance struggles” on
multiple occasions prior to the ethics discussion. Id. at 36, 88 (Page ID #688, 701). The
contradictions in Michael’s testimony, combined with his knowledge about Dahlman’s problems
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 16
with Bledsoe, raise a host of credibility questions about Dahlman’s influence and the true extent
of Michael’s concern about the ethics issue during the relevant time. Juries, rather than judges,
are better situated to resolve those questions. Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 150 (2000).
Meanwhile, Dahlman and Markum were “adamant” that Bledsoe be demoted rather than
transferred to NLOR, even when Williams and Michael were initially in favor of the latter
option. R. 33-3 (Smith Decl. ¶ 8) (Page ID #829). Williams, who found Dahlman
“intimidating” and described Dahlman as a “bully,” supported Bledsoe’s transfer during the
weeks of discussion that followed and even agreed that transferring Bledsoe would have resolved
the conflict. R. 30-5 (Williams Dep. at 34–36, 52) (Page ID #495–97, 512). But, over time,
something happened to change Williams’s mind. The dissent cites Williams’s initial advocacy
for Bledsoe and the passage of time as evidence that the Committee made a reasoned decision
after weighing all the options. Dissent Op. at 26–27. That explanation, though reasonable, fails
to draw inferences in the light most favorable to Bledsoe. Equally plausible is a scenario in
which Williams slowly capitulated to Dahlman’s and Markum’s pressure to vote to demote
Bledsoe. After all, according to Williams, “[Dahlman] like[d] it his way. If you could convince
him it was his idea, he was all for it. If it was your idea, he questioned it.” R. 30-5 (Williams
Dep. at 51) (Page ID #512). As Michael testified, moreover, the Committee strove for a
unanimous result, rendering it likely that some members persuaded others to vote in certain
ways. R. 30-16 (Michael Dep. at 102–03) (Page ID #704–05). Viewing these facts in Bledsoe’s
favor, a reasonable juror could find that over time, Dahlman’s and Markum’s strong opinions
overpowered those of Williams and Michaels.
That the Committee voted unanimously for demotion does not foreclose Bledsoe’s claim.
Gutzwiller, 860 F.2d at 1327. The Supreme Court indicated as much in Reeves v. Sanderson
Plumbing Products. 530 U.S. at 152–53. In that case, multiple company managers, including
one who discriminated against the plaintiff, recommended to the president of a company that the
plaintiff be fired. Id. at 138. The Court admonished the appellate court, which granted summary
judgment to the employer, for “giving weight” to the other managers’ lack of animus and
“discredit[ing]” the plaintiff’s evidence that the biased manager made the decision. Id. at 152–
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 17
53. Group decisions—especially small group decisions—often involve deference to an
experienced or passionate member, and one person’s influence often leads to a unanimous result.
Construing the evidence in Bledsoe’s favor, a jury could determine that is what happened here.
TVA argues that Dahlman’s negative animus could not have motivated Bledsoe’s
demotion because Dahlman did not create the ethics conflict or initiate the ethics inquiry. That
argument, however, unfairly characterizes Bledsoe’s claim. Bledsoe argues that there were
multiple reasonable alternatives to demotion, and that Dahlman’s influence convinced the
Committee to reject those alternatives. The ethics problem, according to Bledsoe, was thus a
convenient excuse—a pretext—that Dahlman could use to convince the Committee to demote
him. Indeed, “when an ‘employer . . . waits for a legal, legitimate reason to fortuitously
materialize, and then uses it to cover up his true, longstanding motivations for firing the
employee,’ the employer’s actions constitute ‘the very definition of pretext.’” Hamilton v. Gen.
Elec. Co., 556 F.3d 428, 436 (6th Cir. 2009) (quoting Jones, 488 F.3d at 408). Even if the ethics
inquiry began with Michael, it is entirely believable, rather than “odd,” Dissent Op. at 27, that
Dahlman would jump at the opportunity to press for a convenient “solution” to his problems with
Bledsoe once Michael raised an ethics concern. R. 30-2 (11/21/2017 Email from Dahlman to
Bailey) (Page ID #296). Once Michael raised the ethics problem, demoting Bledsoe was not the
only available solution. It is also entirely believable that Dahlman convinced the Committee,
including Michael, to ignore alternatives after Michael initiated the discussion.
Bledsoe offers multiple alternatives to demotion that TVA could have considered. TVA
could have transferred Bledsoe to a NLOR instructor position or transferred his son to another
plant location. Other instructors with significant experience in the NLOR and NGSPO programs
agreed that these alternatives were viable. R. 33-3 (Smith Decl.¶ 3–4, 9, 10) (Page ID #828,
829–30); R. 33-2 (Allen Decl. ¶ 3, 4, 8) (Page ID #825–26). Williams also agreed that
transferring Bledsoe would have resolved the conflict. R. 30-5 (Williams Dep. at 34–36, 38)
(Page ID #495–97, 499). Bledsoe’s son, moreover, was willing to transfer to Watts Bar to
resolve the ethics concerns, and the final roster of students had not been determined at the time
that the Committee was considering the ethics issue. R. 30-1 (Dahlman Dep. at 116) (Page ID
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 18
#268); R. 30-5 (Williams Dep. at 38) (Page ID #499); R. 30-18 (Hudson Bledsoe Decl.) (Page ID
#724); R 30-16 (Michael Dep. at 76) (Page ID #698).
In response, TVA argues that the demotion decision could not have been pretextual
because the alternatives were impracticable. TVA contends that it could not “adequately
separate” the NLOR and NGSPO programs to avoid the appearance of an ethical conflict and
that staffing concerns prevented the transfer. TVA further maintains that it could not transfer
Bledsoe’s son because Bledsoe’s union referred Hudson to TVA, and Hudson preferred the
Sequoyah plant. R. 30-16 (Michael Dep. at 94–95) (Page ID #702–03).
Bledsoe raises genuine disputes of fact to counter TVA’s points. First, Bledsoe rejects
TVA’s distinction between him and the other instructors with sons in other training programs
because all instructors at the Sequoyah Training Center have access to all exams. R. 33-3 (Smith
Decl. ¶ 10–11) (Page ID #829–30); R. 33-2 (Allen Decl. ¶ 4) (Page ID #825). Second, Bledsoe
points out that all the members of the Committee agreed that his son’s transfer would have
resolved the ethics concern. R. 30-11 (Markum Dep. at 64–65) (Page ID #630–31); R. 30-1
(Dahlman Dep. at 116) (Page ID #268); R. 30-16 (Michael Dep. at 78–79) (Page ID #698–99);
R. 30-5 (Williams Dep. at 38) (Page ID #499); R. 30-6 (Bledsoe Dep. at 152–55) (Page ID
#577–78).
A jury is best positioned to resolve these factual disputes. Reasonable alternatives to
demotion render it more likely—although not certain—that Dahlman, rather than the ethical
conflict, caused Bledsoe’s demotion. The jury, rather than the court, should decide which
explanation seems more plausible. See Marshall, 854 F.3d at 382 (holding genuine disputes of
material fact existed when it was “not clear that [plaintiff’s] performance . . . justified a
demotion”); cf. Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 320 (6th Cir. 2019).
TVA disagrees, arguing that we should instead defer to its judgment under the honest-
belief rule.3 Under that rule, if an employer honestly believes in a mistaken or baseless reason
3Bledsoe argues that TVA waived its arguments regarding the honest-belief rule because it raised them for
first time in its reply brief before the district court. We decline to construe waiver so strictly. Bledsoe’s arguments
regarding pretext, raised in response to TVA’s summary-judgment motion, prompted TVA’s honest-belief
arguments. “[A]n ‘issue raised for the first time in defendant’s response to plaintiff’s reply brief for summary
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 19
for the adverse action, the employer lacks discriminatory intent, and the action cannot be
pretextual. Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). TVA argues that even if
it were mistaken that there were no reasonable alternatives to demoting Bledsoe, the honest-
belief rule prevents Bledsoe from establishing pretext, and consequently discrimination, because
the Committee considered and rejected alternatives in good faith.
The honest-belief rule, however, does not command blind deference to an employer’s
business judgment in any employment-discrimination action. Applying the rule makes sense
only when a plaintiff relies solely on irrational bases for an employer’s actions to demonstrate
pretext. See Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 890 n.5 (6th Cir. 2020);
Amos v. McNairy County, 622 F. App’x 529, 541 n.10 (6th Cir. 2015). To show pretext here,
Bledsoe relies both on the existence of reasonable alternatives to demotion and on evidence of
Dahlman’s negative animus and influence on the Committee under a cat’s paw theory. When a
plaintiff invokes the cat’s paw theory, “the honesty or sincerity of the decisionmaker’s belief is
irrelevant. What is relevant is that the belief is rooted in a biased recommendation.” Marshall,
854 F.3d at 380. Indeed, a cat’s paw theory is premised upon an unbiased decisionmaker and
therefore always involves a decisionmaker with sincere beliefs.
In other words, the honest-belief rule does not defeat a cat’s paw theory because, under
that theory, the bias of the influencing employee influences the otherwise neutral decision. It
follows, then, that an employer may still raise the honest-belief rule if the decisionmaker
conducts an “in-depth and truly independent investigation” showing that the adverse action is
warranted for reasons unrelated to the bias. Id. at 380. An independent investigation defeats a
cat’s paw claim only when the investigation “determin[es] that the adverse action was, apart
from the supervisor’s recommendation, entirely justified.” Id. (quoting Staub, 561 U.S. at 421).
TVA argues that there was just such an independent investigation here because TVA’s
ethics director, who was not on the Committee, determined that hiring Bledsoe’s son would
cause problems. No evidence, however, shows that the ethics director considered or
judgment [is] not waived,’” moreover, when “the district court fully addressed the argument in its order and [when]
both parties fully briefed the issue on appeal.” Salling v. Budget Rent-A-Car Sys., Inc., 672 F.3d 442, 444 (6th Cir.
2012) (quoting Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)).
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 20
recommended any alternatives to demotion. The ethics director merely stated that an ethics issue
would arise if Bledsoe taught his son, a proposition that Bledsoe does not dispute. R. 30-14
(11/21/2017 Email from Brown to Markum) (Page ID #672); R. 30-6 (Bledsoe Dep. at 134–35)
(Page ID #573). To the extent that the Committee itself investigated alternatives, Dahlman’s
participation negates that independence, and forecloses application of the honest-belief rule.
Finally, to show that the ethical concerns did not warrant demotion, Bledsoe offers
evidence that other Sequoyah Training Center instructors had sons entering various training
programs and were not subjected to an ethics inquiry, much less demoted. R. 33-3 (Smith
Decl.¶ 12) (Page ID #830); R. 33-2 (Allen Decl. ¶ 8) (Page ID #826); R. 30-11 (Markum Dep. at
50–52) (Page ID #627). A plaintiff offering comparator evidence to demonstrate pretext must
show that the comparator is similar in “all relevant respects.” Miles, 946 F.3d at 893 (quoting
Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012)). Whether the comparison
between similarly situated individuals is sufficiently relevant is itself a jury question. See
Strickland v. City of Detroit, 995 F.3d 495, 514 (6th Cir. 2021).
Here too, questions of fact remain. TVA rejects Bledsoe’s comparison to similarly
situated instructors because those instructors were teaching programs with different licensing
requirements than the programs in which their sons were enrolled. R. 30-11 (Markum Dep. at
50–53) (Page ID #627–28). Bledsoe offers testimony from other Sequoyah instructors that the
licensing and non-licensing programs were similar in all relevant respects. For example, the
instructors who were not demoted had access to their sons’ exams because all instructors—
licensed and non-licensed—have access to all exams. R. 33-3 (Smith Decl.¶ 11) (Page ID #830);
R. 33-2 (Allen Decl. ¶ 4) (Page ID #825). As much as the dissent would like to credit TVA’s
explanation for why that fact is irrelevant, Dissent Op. at 29 n.5, that task is for the jury. See
Strickland, 995 F.3d at 514. Because, as discussed, the honest-belief rule does not shield TVA,
at trial, a juror will be able to weigh the competing testimony and determine whether the
similarities between the licensed and unlicensed programs are relevant enough.
TVA also offers its own comparator evidence, emphasizing that the Committee
determined that Roger Brown could not work as an NSGPO instructor because his son was also
an NSGPO student. R. 30-14 (Email from Markum to Michael and Dahlman) (Page ID #672);
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 21
R. 30-16 (Michael Dep. at 55–56) (Page ID #693). Such evidence, “although relevant, is
certainly not dispositive.” Reeves, 530 U.S. at 153. Bledsoe again raises a factual dispute
regarding TVA’s motives here: Roger Brown was not similarly situated because he had merely
expressed interest in the Sequoyah Training Center instructor position but was never an
instructor. R. 30-16 (Michael Dep. at 67–68) (Page ID #696). A reasonable juror could weigh
this evidence and find that TVA reasonably declined to appoint Brown—who had no experience
teaching—to an instructor position, while it improperly demoted Bledsoe—who had been
teaching for many years—due to Dahlman’s negative animus. Namely, because there was less
impetus for TVA to hire Brown as a new instructor, it is more reasonable that TVA would
decline to explore solutions to resolve Brown’s conflict than for Bledsoe’s. This distinction
might “carry the day” in the eyes of a juror, and it may not. Dissent Op. at 29. In any case,
comparator evidence is not dispositive, and therefore, a jury should evaluate its relevance. See
Reeves, 530 U.S. at 153.
At bottom, the “ultimate inquiry” in establishing pretext is whether the employer took the
adverse action for the stated reason. Miles, 946 F.3d at 888 (quoting Tingle v. Arbors at Hilliard,
692 F.3d 523, 530 (6th Cir. 2012)). Bledsoe has provided evidence supporting the following
facts: (1) Dahlman harbored age- and disability-based animus against Bledsoe, (2) Dahlman
wished that Bledsoe would stop teaching, (3) Dahlman was a member of the Committee,
(4) Committee members did not have independent knowledge about training-center operations
and deferred to, or were otherwise swayed by, Dahlman, and (5) the Committee did not consider
reasonable alternatives to demotion. From these facts, a jury could infer that Dahlman’s age-
and disability-based bias motivated him to influence the Committee’s decision to demote
Bledsoe rather than transfer him or his son. Summary judgment on Bledsoe’s ADEA and
Rehabilitation Act claims was therefore unwarranted.
D. Retaliation
Finally, Bledsoe argues that the district court incorrectly dismissed his retaliation claim.
Retaliation claims established through indirect evidence are also governed by the McDonnell
Douglas burden-shifting framework. Blizzard, 698 F.3d at 288. Bledsoe therefore must first
establish a prima facie case, showing that he (1) “engaged in a protected activity, (2) the
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 22
defending party was aware that the [plaintiff] had engaged in that activity, (3) the defending
party took an adverse employment action against the employee, and (4) there is a causal
connection between the protected activity and [the] adverse action.” Id. (ADEA retaliation
claims); see also Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001) (Rehabilitation Act
retaliation claim). Again, if TVA offers a non-discriminatory explanation for the adverse action,
the burden shifts to Bledsoe to show pretext. Blizzard, 698 F.3d at 288. Bledsoe argues that not
only discrimination but also retaliation in response to his November 2017 human resources
complaint motivated Dahlman to influence the Committee to demote him.
TVA contests only the causation element of that claim.4 “To prove a causal connection,
[a plaintiff] must produce sufficient evidence from which an inference can be drawn that the
[defendant] took the adverse employment action because [the plaintiff]” engaged in protected
activity. Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004). A plaintiff
who shows that the adverse action occurred immediately after the protected activity may be able
to rely on temporal proximity alone to overcome a motion for summary judgment. Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). But when “some time elapses
between when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality.” Id.Bledsoe has produced both evidence of temporal proximity and other evidence of
retaliation. Only three months passed between Bledsoe’s late-November 2017 complaint to
Markum and his February 2018 demotion, an interval that is probative of retaliatory motive. See
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (en banc); Singfield, 389 F.3d at
563. Bledsoe also offers (1) Bailey’s statements shortly after Bledsoe’s complaints to
4Bledsoe first argues that TVA waived this argument because it “conceded” in its summary-judgment
briefing below that Bledsoe established a prima facie case of retaliation. Reply Br. at 18. However, TVA only
assumed “arguendo that Mr. Bledsoe c[ould] establish a prima facie case for . . . retaliation.” R. 31 (Memo in Supp.
of Mot. for S.J. at 15) (Page ID #782). Such an assumption is not an “intentional relinquishment” of a right
sufficient to support waiver. United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)). To the extent Bledsoe claims that TVA forfeited its argument by failing to raise it below, we
nevertheless address it because the district court analyzed the causation issue, which has been fully briefed on
appeal. See United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011).
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 23
Markum—that Dahlman was “pissed” about Bledsoe’s report to Human Resources, (2) Bailey’s
December 2017 statement to Bledsoe which said that he was “afraid Chris [Dahlman was] going
to try to get [Bledsoe] out of here because he’s really pissed off about [Bledsoe] going and
talking to HR,” and (3) Dahlman’s warnings to Bledsoe that he was “vindictive” and that
Bledsoe should never “piss [him] off.” R. 30-6 (Bledsoe Dep. at 25–26, 31, 38–39, 168–69)
(Page ID #545–46, 547, 549, 581). A reasonable juror could believe this testimony and conclude
that retaliation motivated Dahlman improperly to influence the Committee.
TVA argues that Bledsoe’s timing does not add up because Bledsoe complained to
Markum after the Committee had already initiated its ethics inquiry on November 27, 2021.
Although an employer “proceeding along lines previously contemplated, though not yet
definitively determined” is not, by itself, evidence of causality, Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 272 (2001), the timing of the demotion is suspicious even if the ethics inquiry had
already begun before Bledsoe’s complaint. Again, the adverse employment action that Bledsoe
is challenging is demotion rather than the ethics inquiry itself. Therefore, the causal link that is
relevant here is the link between Bledsoe’s complaint to Human Resources and his demotion.
And here, a reasonable juror could find that Bledsoe complained to Human Resources around the
same time that the ethics inquiry was initiated and that Dahlman retaliated for that complaint by
pushing the Committee to demote Bledsoe rather than take other reasonable measures.
TVA cites two cases in which we have upheld summary-judgment grants on retaliation
claims, but neither applies here. In Blizzard, the adverse employment action occurred
significantly longer than three months—“more than a year”—after the plaintiff’s protected
activity and the plaintiff provided no other evidence that the activity caused her termination. 698
F.3d at 289. And in Ford, the plaintiff did not provide any evidence similar to Bledsoe’s
testimony about Dahlman’s statements linking the adverse action to her complaints. 782 F.3d at
767–70. Although TVA characterizes the form of Bledsoe’s evidence, his own deposition
testimony, as “self-serving,” we have repeatedly held that such a label “does nothing to
undermine the other side’s evidence under Rule 56.” Boykin v. Fam. Dollar Stores of Mich.,
LLC, 3 F.4th 832, 841 (6th Cir. 2021) (collecting cases). Bledsoe’s testimony recounting
Dahlman’s retaliatory sentiments raises disputes of fact sufficient to survive summary judgment.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 24
As for pretext, the same facts supporting Bledsoe’s discrimination claim support his
retaliation claim. See Marshall, 854 F.3d at 384 (reversing grant of summary judgment on
discrimination claim and noting similar disputes regarding decision-maker bias and influence
relevant to retaliation claim). Bledsoe has presented enough evidence to show, under a cat’s paw
theory, that Dahlman’s negative animus, rather than the ethics concern, drove the Committee’s
decision to demote him. Bledsoe has also presented enough evidence to show that both
discrimination and retaliation motivated Dahlman’s negative animus. Therefore, the district
court incorrectly dismissed Bledsoe’s retaliation claim.
III. CONCLUSION
Bledsoe has presented evidence from which a reasonable juror could find that Dahlman
frequently criticized him about his age and disability. Viewing the facts and drawing inferences
in the light most favorable to Bledsoe, a jury could find that Dahlman persuaded the other
Committee members to demote him rather than find a reasonable alternative to resolve the ethics
issue. Although a jury could reasonably find that TVA acted sensibly in response to an ethical
problem, it could also find that the Committee impermissibly deferred to Dahlman, whose
prejudice influenced the Committee’s decision. Because we leave weighing of evidence and
credibility determinations to the jury, we REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opinion.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 25
_________________
DISSENT
_________________
NALBANDIAN, Circuit Judge, dissenting. I agree with the majority that Bledsoe’s
claims make it to the pretext inquiry—the third and final step of the McDonnell Douglas
heuristic. At this final juncture, the majority deploys a cat’s paw theory to decide the case in
Bledsoe’s favor. As the majority sees it, Dahlman used all three of his colleagues on the
Committee as his “cat’s paw” to secure Bledsoe’s demotion. But I do not think the cat’s paw
theory works on these facts, and so I respectfully dissent.
For the cat’s paw theory to work, the unbiased decisionmakers must “unthinkingly adopt”
the recommendations of their biased colleague. Marshall v. Rawlings Co., 854 F.3d 368, 378
(6th Cir. 2017) (emphasis added). Put another way, the point of cat’s paw liability is to prevent
employers from hiding behind “willful blindness.” Id. (quoting EEOC v. BCI Coca-Cola
Bottling Co. of Los Angeles, 450 F.3d 476, 486 (10th Cir. 2006)). We have also called this the
“rubber-stamp” theory.1 Bose v. Bea, 947 F.3d 983, 991 (6th Cir. 2020) (quoting Bishop v. Ohio
Dep’t of Rehab. & Corr., 529 F. App’x 685, 696 (6th Cir. 2013)); Arendale v. City of Memphis,
519 F.3d 587, 604 n.13 (6th Cir. 2008). When the case involves more than one decisionmaker
(e.g., a committee), it stands to reason that the plaintiff faces a taller task. After all, we need
facts showing that the biased supervisor manipulated not just one decisionmaker, but a
committee full of them.2 Importantly, the four-member Committee here voted unanimously to
1This might be the better label here. The Aesop reference doesn’t quite work in this scenario. That’s
because this case involves one decisionmaker influencing (allegedly) other decisionmakers. The typical cat’s paw
analysis involves “a biased subordinate, who lacks decisionmaking power” puppeteering a single decisionmaker.
Marshall, 854 F.3d at 377 (internal quotation omitted). Since he is a decisionmaker himself, Dahlman put his paws
into the fire along with those of his colleagues, so to speak.
2As the majority points out, it’s not unheard of (although rare) for courts to apply the cat’s paw theory (or
some variant thereof) to multiple decisionmakers. But again, the bar is very high. In Gutzwiller v. Fenik, for
example, a tenure committee voted unanimously to deny tenure to a female professor, and we sided with the
professor on appeal. 860 F.2d 1317, 1322, 1327 (6th Cir. 1988). Importantly, most of the tenure committee
members in that case “relied exclusively upon the opinion of [the chairman]” because they “lacked the expertise to
properly judge [the plaintiff’s] work” “by their own admission.” Id. at 1327. In fact, most of them “had not even
read any significant part of [the plaintiff’s] publications.” Id. In DeNoma v. Hamilton County Court of Common
Pleas, we again sided with the employee. 626 F. App’x 101, 106-08 (6th Cir. 2015). But there, the biased
supervisor “was the superior, rather than subordinate, of the interview committee members he allegedly used as a
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 26
demote Bledsoe. And had it failed to reach a unanimous decision, the issue would have been
elevated to the next-level committee on the TVA hierarchy.
So did the Committee here roll over and hand the keys to Dahlman (as caselaw requires)?
The facts say otherwise, which means Bledsoe’s claims fall short in the end. I focus on two of
Dahlman’s colleagues on the Committee in particular: David Williams and Kevin Michael. 3 A
reasonable jury cannot conclude that Williams and Michael were conduits of Dahlman’s biases,
for several reasons.
For one thing, the Committee deliberated over this for several weeks. (R. 30-5, Williams
Dep., PageID 497 (“[I]t lasted a few weeks that we discussed outside the meeting and in the
meetings.”); R. 30-16, Michael Dep., PageID 697 (“[W]e talked about this for a long time.”).) In
fact, as Williams confirmed, “there was never a clear consensus or uniformity of opinion when it
came to whether Mr. Bledsoe should be disqualified from working at the training center while
Hudson was going to be an NSGPO student.” (R. 30-5, Williams Dep., PageID 497.) Rather
than “unthinkingly adopt” Dahlman’s recommendations, the Committee thought about this quite
a bit—that much is clear enough. Marshall, 854 F.3d at 378.
Furthermore, Williams is Bledsoe’s union representative. It’s ambitious to suggest the
vice president of Bledsoe’s own union would blindingly defer to Dahlman’s recommendations.
In fact, Williams was well aware of Dahlman’s reputation in the workplace as an “intimidating”
“bully.” (R. 30-5, Williams Dep., PageID 513.) Williams kept himself apprised of Bledsoe’s
complaints about Dahlman, and he knew Bledsoe “was afraid that Mr. Dahlman would
physically hit him.” (R. 30-5, Williams Dep., PageID 519.) On top of this, he kept track of
several other employees who had complained about Dahlman as well. Indeed, rather than defer
conduit for his bias.” Id. at 105. Surely, this optimized the supervisor’s ability to press his thumb on the
committee’s determination. Reeves v. Sanderson Plumbing Products, Inc. is similar. 530 U.S. 133 (2000). The
biased supervisor in that case was married to the company’s president and “exercised absolute power within the
company.” Id. at 152 (internal quotation omitted). And he “berated” the other decisionmakers “who were
supposedly his coequals.” Id. So the common theme is this: The decisionmakers choose to put their collective
heads in the sand (because of power differentials, lack of expertise, or some other reason) and “rely[] on [the]
discriminatory information flow” supplied by the biased supervisor. Madden v. Chattanooga City Wide Serv. Dep’t,
549 F.3d 666, 678 (6th Cir. 2008). As the rest of this dissent explains, that is just not what happened here.
3As for Megan Markum, I agree with the majority that she likely deferred to Dahlman. See Maj. Op. at 14-
15.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 27
to the recommendations of someone he knew was bullying his union members, Williams pushed
back during Committee deliberations. More specifically, he tried to get Bledsoe transferred to
the NLOR course in lieu of a demotion. (R. 30-5, Williams Dep., PageID 497 (“I always said
why couldn’t he teach requal[ification].”).)
That brings us to Kevin Michael. Michael is the one who raised the conflicts issue in the
first place. He did this by asking Markum to seek an ethics opinion regarding the potential
conflict. In other words, this whole saga began with Michael, not Dahlman. It’s odd to think
that Michael would raise the issue and then find himself catpawed by Dahlman after the fact.
The majority responds by arguing that “[e]ven if the ethics inquiry began with Michael, it is
entirely believable . . . that Dahlman would jump at the opportunity to press for a convenient
solution to his problems with Bledsoe.” Maj. Op. at 17 (internal quotation omitted). That’s
certainly a plausible account of Dahlman’s motivations, but it says nothing about Michael. Of
course, no one disputes Dahlman’s animus towards Bledsoe.
The majority further suggests that because Michael “was never an instructor or manager
in the Sequoyah Training Center program,” he lacked the qualifications to assess the conflicts
issue. Maj. Op. at 15. As the majority sees it, this indicates Michael punted everything to
Dahlman. But it turns out Michael had plenty of “firsthand knowledge of . . . the instructors’
day-to-day activities.” (R. 30-16, Michael Dep., PageID 694.) During the relevant period, he
served as the Sequoyah plant’s operations superintendent. This meant he was “the primary point
of contact for labor-related issues.” (Id. at PageID 683.) And indeed, Michael was familiar with
the goings-on at the training program thanks to both his “time spent [there] as a student” and his
“time as a manager . . . being over there involved in classes,” “seeing lots of classes go
through.” (Id. at PageID 695.) Besides, he was knowledgeable enough to spot the conflicts issue
in the first place.
The majority cites some additional facts: that Michael knew Dahlman was unhappy with
Bledsoe’s performance, Michael made at least one inconsistent statement, and Michael referred
Bledsoe to his supervisor when the latter mentioned the conflicts issue in the hallway. Maj. Op.
at 15-16. But none of these could lead a reasonable factfinder to conclude that the kind of
catpawing that the caselaw envisages happened here. A reasonable jury would need to find that
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 28
Michael abdicated his decision-making authority in toto, opting instead to hide behind “willful
blindness.” Marshall, 854 F.3d at 378 (internal quotation omitted). This, after Michael raised
the conflicts issue and engaged in a weeks-long deliberation with the rest of the Committee. At
bottom, the record here lacks the there there to bridge this gap. Our task is to view the available
facts in the light most favorable to Bledsoe, not to entertain every possible hypothetical in an
effort to go where the record doesn’t.
This all begs the question: Why did the Committee vote unanimously to demote Bledsoe
in the end? After deliberating for several weeks, the Committee realized the transfer option was
untenable for entirely nondiscriminatory reasons. Michael summarized it thus: “We considered
assigning Mr. Bledsoe to work in NLOR, but NLOR and NSGPO commingle, meaning that there
would not be enough separation between Mr. Bledsoe and his son to prevent the appearance of a
conflict.” (R. 30-16, Michael Dep., PageID 694.)
The facts support the Committee’s conclusion—or at the very least an “honest belief”
that the two courses were too intertwined.4 See Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th
Cir. 2009) (“When an employer reasonably and honestly relies on particularized facts in making
an employment decision, it is entitled to summary judgment on pretext even if its conclusion is
later shown to be mistaken, foolish, trivial, or baseless.” (internal quotation omitted)). As
Williams emphasized, “[m]ost of the management side was saying they couldn’t separate the two
[NLOR and NSGPO].” (R. 30-5, Williams Dep., PageID 496.) The management also “claimed
they were going to use some of the NLO requal instructors to teach some classes in the NSGPO
program.” (Id.) Michael, for his part, testified that he “expected [instructors that he himself had
selected] to communicate with one another, to discuss exam questions with one another, to freely
go in and observe other classes, teach other classes.” (R. 30-16, Michael Dep., PageID 695.)
And he “fully expected that when [he] provided those members of [his] staff to the training staff
that they would go into those two programs [NLOR and NSGPO] and perform functions in either
4True, a cat’s paw theory can defeat the honest-belief rule. After all, once it’s established that a
decisionmaker relies on the recommendations of a biased supervisor, “the honesty or sincerity of the
decisionmaker’s belief is irrelevant,” and “[w]hat is relevant is that the belief is rooted in a biased recommendation.”
Marshall, 854 F.3d at 380. But all of this presupposes that the cat’s paw theory is sound—that the decisionmakers
did blindingly defer to the biased supervisor as a threshold matter. But that’s not what happened here, so it stands to
reason that the honest-belief rule continues to apply.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 29
program.” (Id.) Indeed, “[i]t was uninhibited in those two programs how they would work
together.” (Id.) Michael “ha[d] seen instructors go back and forth,” and he knew all this “from
past experience.” (Id.)
Of key importance is the Committee’s treatment of a similarly situated employee named
Roger Brown. The Committee thought about hiring Brown as an NSGPO instructor. But
because his son was going to participate in the NSGPO course, Brown ran up against precisely
the same conflicts issue that confronted Bledsoe. The Committee concluded, just as it did with
Bledsoe, that Brown couldn’t teach either course (NLOR or NSGPO). Brown, of course, had
nothing to do with Dahlman’s prejudices. Nevertheless, the Committee treated him the same
way it treated Bledsoe anyway. This confirms that the Committee’s decision to demote Bledsoe
was driven by nondiscriminatory reasons.5 The majority says Brown “was not similarly situated
because he had merely expressed interest in the . . . instructor position but was never an
instructor.” Maj. Op. at 21. But it’s not at all clear why that distinction should carry the day.
Clearly, as its treatment of Brown shows, TVA had honest concerns about the overlaps between
the NLOR and NSGPO courses, quite apart from Dahlman’s prejudices.
The Committee also considered moving Bledsoe’s son to the Watts Bar plant instead.
Indeed, Williams testified that he and Michael supported this idea at first. But there were honest
reasons to sidestep this alternative as well. For one thing, the list of students had already been
set by that point, and “once each side picks a list [TVA does not usually] swap people out,”
albeit admittedly not always without exceptions. (R. 30-5, Williams Dep., PageID 498-99; see
id. at PageID 488 (“Once we made selections, there really wasn’t no moving people around.”).)
More significantly, not only did Bledsoe’s son rank Sequoyah as his first choice on his
preference form, his union had referred him specifically for Sequoyah as well.
5Bledsoe fixates on two other employees: Darrell Johnson and Bernie Geier. Both were allowed to keep
their instructor positions even though each had a son in a training program. But their situations were altogether
different. Unlike with Brown and Bledsoe, the father-son relationship here straddled the non-licensed and licensed
divide. Johnson taught the NLOR course for the non-licensed operator program; his son participated in the
ILT course for the licensed operator program. Geier taught the ILT course for the licensed operator program; his
son participated in the NSGPO course for the non-licensed operator training program. True, instructors for the
non-licensed and licensed programs could access each other’s exam banks. But that does not mean that the two
programs (non-licensed and licensed) were as intertwined as the two non-licensed courses. Indeed, Michael and
Williams both had honestly held concerns specific to the latter that went beyond shared exam banks. See supra at
28-29.
No. 21-5808 Bledsoe v. TVA Bd. of Directors Page 30
All in all, the evidence is insufficient to show that Dahlman manipulated all three of his
colleagues on the Committee. Indeed, the Committee had honestly held, nondiscriminatory
reasons to choose demotion over other options. Repugnant as Dahlman’s comments were, he did
not speak for the Committee. In the end, even Bledsoe’s own union representative signed off on
his demotion. This case merits an affirm in my view, and I respectfully dissent.