Jon Grant v. Gahanna-Jefferson Public Sch. District

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0214n.06
No. 20-3926
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 21, 2021
DEBORAH S. HUNT, Clerk
)
JON GRANT,
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
GAHANNA-JEFFERSON PUBLIC SCHOOL )
DISTRICT, )
)
Defendant-Appellee. )
BEFORE: GIBBONS, WHITE, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. After more than a decade of employment, Jon
Grant was terminated by the Gahanna-Jefferson Public School District. Grant believed that his
termination was a retaliatory measure taken in response to his voiced concerns over various
working conditions. So he sued the school district. The district court granted summary judgment
to the district on alternative grounds: one, that Grant failed to establish a prima facie case of
retaliation, and two, that even if he had done so, he did not demonstrate that the reasons offered
by the school district for his termination were pretextual. On appeal, Grant addresses the first
ground, but leaves the second largely unchallenged, and the brief points Grant makes are
unmeritorious in any event. Accordingly, we affirm.
I.
The Gahanna-Jefferson Public School District employed Grant for twelve years, primarily
as a custodian. Over time, Grant’s employment records revealed a steep decline in his
Case No. 20-3926, Grant v. Gahanna-Jefferson Pub. Sch. District
performance, for which he received multiple warnings. In the months preceding his termination,
Grant was accused of harassing a coworker. In addition, according to the school district, a related
investigation revealed that Grant had falsified overtime reporting. Ultimately, the district’s
superintendent recommended to the school board that Grant’s employment be terminated, a
recommendation the board accepted.
Grant adds to this narrative a key allegation: that he aired workplace-related grievances to
a human resources employee shortly before the harassment allegations against him surfaced and
an investigation ensued. Grant claims that his grievances covered subjects including unpaid
overtime, nepotism, and unequal opportunities. He also claims to have raised the possibility of
employees forming a union.
Believing that his termination was a retaliatory measure, Grant sued the district for First
Amendment retaliation under 42 U.S.C. § 1983, retaliation under the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 215(a)(3), and reverse discrimination under Ohio law. Grant v. Gahanna-
Jefferson Pub. Sch. Dist., No. 2:18-cv-963, 2020 WL 4933916, at *1 (S.D. Ohio Aug. 24, 2020).
The district court granted summary judgment to the school district on all claims. Id. On appeal,
Grant has abandoned all but his FLSA claim. Island Creek Coal Co. v. Wilkerson, 910 F.3d 254,
256 (6th Cir. 2018) (explaining that appellants forfeit “any challenge to a district court . . .
decision” not raised in their opening brief).
II.
FLSA retaliation claims follow the burden-shifting framework familiar to more traditional
employment-discrimination claims. See McKinnon v. L-3 Commc’ns Corp., 814 F. App’x 35, 42
(6th Cir. 2020) (citing Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006)). That
is, if Grant establishes a prima facie case of retaliation, the burden then shifts to the school district
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to provide legitimate, nonretaliatory reasons for its actions. Flowers v. WestRock Servs., Inc., 979
F.3d 1127, 1130 (6th Cir. 2020). Once the district has done so, Grant must show that the
explanations offered were not the true reasons for the district’s adverse actions against him,
otherwise known as pretext. Id. The district court found that Grant failed to establish a prima
facie case of retaliation due to the absence of a causal connection between Grant’s conversation
with human resources and the superintendent’s recommendation to terminate Grant. Grant, 2020
WL 4933916, at *7–10. And even if Grant had established a prima facie case of retaliation, the
district court alternatively concluded that Grant did not demonstrate that the legitimate,
nonretaliatory reasons offered by the school district for Grant’s termination were pretextual. Id.at *10–11.
In instances like this, where “a district court provides two alternative grounds for its
decision, the losing party must challenge each ground on appeal to change the outcome.” Stewart
v. IHT Ins. Agency Grp., LLC, 990 F.3d 455, 456 (6th Cir. 2021). In his appeal, Grant takes issue
with the district court’s first holding—that he did not establish a prima facie case of FLSA
retaliation. But even were Grant to convince us that holding was in error, to survive summary
judgment, Grant must also demonstrate that the district court erred by concluding that Grant failed
to show that the school district’s proffered justifications for Grant’s termination were pretextual.
Flowers, 979 F.3d at 1132–33. Yet Grant largely fails to develop any argument or cite any
countervailing authority to refute that independent basis for awarding judgment to the district. At
best, Grant offers one paragraph of unsubstantiated factual assertions that allegedly undermine the
school district’s narrative. Typically, that is not enough to preserve an argument on appeal. See
United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (“We have cautioned that ‘[i]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
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are deemed waived,’ and that ‘[i]t is not sufficient for a party to mention a possible argument in
the most skeletal way, leaving the court to . . . put flesh on its bones.’” (alterations in original)
(quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997))). For in the absence of a
developed argument accompanied by legal and factual support, we have no basis to question the
district court’s articulated grounds for rejecting Grant’s claims. See Nat’l Credit Union Admin.
Bd. v. Zovko, 728 F. App’x 567, 569 (6th Cir. 2018) (“Appellants make no reference to the record,
and this court is not obligated to search the record for support for their argument.” (citing Fed. R.
App. P. 28(a)(8)(A))).
Even were we to read Grant’s brief as preserving his challenge to the district court’s ruling
on pretext, Grant has not advanced a persuasive reason for us to reverse the district court’s
determination. Without any supporting citations to the record or case law, Grant offers a handful
of sentences addressing why his termination was unjustified. First, Grant claims that the video
provided by the school district does not prove the allegation that he stole time. The district court
noted, however, that the school district was alerted to the possible time theft when Grant reported
overtime on a day that did not require much work. Grant, 2020 WL 4933916, at *11. The district
court correctly reasoned that these two indicia taken together could support an honest belief that
Grant stole time. See id.; Nathan v. Great Lakes Water Auth., --- F.3d ---, 2021 WL 1182304, at
*10 (6th Cir. Mar. 30, 2021) (explaining that “[i]f an employer holds an ‘honest belief’ that an
adverse employment action is justified for a legitimate reason, summary judgment in their favor
[on a retaliation claim] is appropriate” (quoting Clay v. United Parcel Serv., Inc., 501 F.3d 695,
715 (6th Cir. 2007)). Grant offers nothing to undermine this honest belief. Second, Grant claims
that his coworker’s deposition, standing alone, does not show that Grant harassed the coworker.
The district court similarly rejected this argument because there was other evidence permitting an
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honest belief of harassment, including an email from the coworker to the superintendent and
testimony that the coworker also complained to the superintendent in person. Grant, 2020 WL
4933916, at *11. Third, Grant challenges the credibility of an internal complaint alleging that he
did not properly clean the toilets. But Grant “d[id] not dispute” the “evidence of ongoing
complaints about his proficiency in cleaning restrooms” generally. Id. And multiple, undisputed
complaints would support an honest belief of poor work performance. See Nathan, --- F.3d ---,
2021 WL 1182304, at *10. Accordingly, ample evidence supports the decision to terminate
Grant’s employment. See Grant, 2020 WL 4933916, at *10 (explaining that Grant’s contention
that “the basis for [his] termination [is] not supported by any evidence” is not supported by the
record (second alteration in original)).
Once the school district provided legitimate reasons for terminating Grant, the burden
shifted to Grant to show those reasons were pretextual. Because he fails to develop an argument
on this front or provide persuasive reasons to reject the district court’s holding, we affirm.
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