Amy MacDonald-Bass v. JE Johnson Contracting, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0887n.06
No. 10-2318
FILED
UNITED STATES COURT OF APPEALS
Aug 13, 2012
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
AMY MACDONALD-BASS, )
) ON APPEAL FROM THE
Plaintiff - Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
J.E. JOHNSON CONTRACTING, ) OPINION
INC., )
)
Defendant - Appellee.
______________________________
Before: McKEAGUE and WHITE, Circuit Judges; BARRETT, District Judge.*
PER CURIAM. Plaintiff-Appellant Amy MacDonald-Bass timely appeals the
district court order granting summary judgment to her former employer, Defendant-Appellee
J.E. Johnson Contracting, Inc. MacDonald-Bass alleges that JEJ terminated her on account
of her sex and in retaliation for filing a worker’s compensation claim. We AFFIRM.
I.
Neither party disputes the facts as set forth in the district court’s opinion,
MacDonald-Bass v. JE Johnson Contr., Inc., 2010 U.S. Dist. LEXIS 75961 (E.D. Mich. July
28, 2010), so we reprint them in full:
Plaintiff is female, approximately thirty-seven years old, 5' 1" tall, and weighs
125 pounds. Defendant is a full service mechanical contractor providing
process piping, plumbing, and heating, ventilating, and air conditioning
*
The Honorable Michael R. Barrett, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
(‘HVAC’) services. In October 2006, Jim Bass, an employee of Defendant,
asked his supervisor, mechanical and general superintendent Ray Johnson, to
consider hiring Plaintiff. During his interview with Plaintiff, Johnson
expressed concern about Plaintiff’s ability to physically lift the weight of the
pipe and plumbing products. Plaintiff indicated that she did not want any
special treatment and stated that she could repeatedly lift 50 pounds or more.
Ultimately, Johnson ‘agreed to give the Plaintiff the same opportunity to
work at J.E. Johnson as everyone else despite her small physical size and lack
of experience.’ When Plaintiff was hired on October 23, 2006, she was the
only female employee in the pipefitting department.
Plaintiff began employment as a ‘helper’ at a pay rate of $ 8.50 per hour for
forty hours a week. Her job required her to ‘safely perform assigned tasks
related to the layout and installation of the various system related to
commercial, industrial and institutional systems.’ Assigned tasks included,
but were not limited to, lifting heavy pipes, retrieving parts, cutting, grinding,
beveling a variety of pipings and fittings, painting the back room ceilings, and
the overall cleanup of the shop area. Plaintiff was required to be able to meet
certain physical requirements, including: (1) the ability to stand for prolonged
periods of time; (2) the ability to stand and walk throughout project sites and
machine shop; (3) a full range of body movements including use of hands to
finger, handle, or feel objects, computer equipment and peripherals; (4) the
ability to bend, stoop, and crouch; (5) the ability to climb stairs and ladders;
(6) the ability to operate a motor vehicle; (7) a command of the senses of
sight, hearing and touch; and (8) the ability to lift up to fifty pound loads.
In February 2007, Plaintiff received a sixty to ninety day performance
evaluation. Her supervisors noted that her skill level matched her wages, and
that the ‘ABC Wheels of Learning’ program would help improve her skills.
On March 12, 2007, Plaintiff received a $ 1.50 per hour wage increase. The
wage increase form, signed by Plaintiff’s supervisor, David Shenkel, noted
that Plaintiff was a ‘fast learner’ and ‘has self motivation to become better in
the field.’
Plaintiff’s first full performance evaluation was conducted on March 29,
2007, and signed by Shenkel. Plaintiff’s overall performance rating was
82.63%, id., which Johnson confirmed was an ‘acceptable’ rating. This
evaluation noted that Plaintiff was a ‘good worker’ and ‘listen’s (sic) well to
instruction’; however, she needed improvement in areas including ‘ISO
orientation,’ ‘hands on fitting skills,’ ‘spec reading,’ and ‘testing.’
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
In April 2007, Plaintiff had a meeting with Johnson and Schenkel, and was
offered a position as a pipefitter. During this meeting, Plaintiff was told that
Greg Younk, Defendant’s Vice President and General Manager, wanted
Plaintiff to be the fitter ‘up front’ in the shop area. Schenkel told Plaintiff
that Younk had said ‘why hire someone when we have somebody capable of
doing it.’ Schenkel told Plaintiff that he did not want her to do the job, that
he thought it was ‘ridiculous.’ Yet, Plaintiff testified that during this
meeting, no one expressed any concern about her physical ability to do the
job, read isometric drawings, or perform other fitter functions.
In approximately May 2007, after Plaintiff had finished two semesters at the
‘ABC’ academy, Plaintiff’s job classification changed from helper to
apprentice pipe fitter one. As a pipe fitter one, Plaintiff had to perform the
same basic functions and the same physical demands as for the helper
position. She was also required to find fittings for the journeymen, measure
and prep welds, and fit up welds.
Plaintiff asserts that she was not given the hands-on work needed to learn the
trade. After about three months, Plaintiff approached Younk about the issue.
Plaintiff testified that he said, ‘I was afraid this was going to happen.’ Younk
and Plaintiff then spoke with Johnson and Steven Marker, Operations
Manager. Johnson told Marker that he did not know why Plaintiff was not
being allowed to fit. Marker said that he would look into the situation, but
Plaintiff contends that nothing happened. Every two or three weeks, Plaintiff
raised the issue with Johnson and he told her that it was not his responsibility.
On August 1, 2007, Plaintiff received a $ 1.85 per hour wage increase.
Johnson recommended Plaintiff for the wage increase. On the wage increase
form, Johnson noted that Plaintiff was a ‘Level 1 fitter’ and ‘is a good worker
who wants to learn.’ Johnson testified that Defendant placed Plaintiff with
a mentor, journeyman Kevin Roberson, to see if he could assist her in
improving her performance. Johnson testified that Plaintiff seemed unable
to retain the information provided by Roberson and Plaintiff continued to
have performance problems identifying specific fittings and interpreting ISO
drawings as well as lifting the bigger bore piping. Johnson discussed these
concerns with Plaintiff.
Defendant again praised Plaintiff in her September 2007 evaluation, but
noted that Plaintiff needed to improve in certain areas, including “tracing,”
“testing,” “flame cutting,” “specs & P&ID’s,” “ISO reading,” and "layout.”
The evaluation noted that Plaintiff had improved in “reading ISO’s” and
“layout.” The evaluation notes that Plaintiff “would like more opportunity
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
to get out of the back room” and “wants to learn more fitting skills.” Plaintiff
asserts that male employees, such as Jake Rowley, were permitted to perform
pipefitting duties, advancing past Plaintiff in their skills because they were
permitted to obtain hands-on experience.
Defendant emphasizes that the job took a physical toll on Plaintiff and
highlights the following medical evidence:
08/14/2007 . . . Right-sided shoulder pain . . . chronic right
shoulder pain over the past half year or so if not prior to that
. . . As a whole, I suspect this is more of an overuse injury
rather than any specific trauma. She denies any specific
injuries or accidents. She has a lot of problems with her right
shoulder specifically with any abduction and adduction . . . A
lot of specific things that aggravate her including grinding,
etc. . . .
05/30/2007 . . . Right shoulder pain . . . this has been going on
for some time, probably a few months . . . the past several
weeks it has been worsening . . . She notices taking off her
shirt or lifting the right arm hurts. She did have one episode
of numbness in all the fingers of her right hand about 1 week
ago . . . She has not had any specific injury . . . She notes she
is often having to put large pipes on that shoulder . . .
01/30/2007 . . . Upper back pain . . . denies any specific
trauma . . . doing a lot of very heavy lifting . . . she knew that
it would cause some irritation and that she has had similar
problems in the past . . . left upper shoulder and lower
cervical spine . . . have been tender today and the last 3 or 4
days the right side has been exquisitely tender . . . fiance has
been massaging it . . . she does have some trigger point
muscle spasms, right greater than left . . .
On January 30, 2008, Plaintiff informed safety director Laraway that she was
having “cramping in [her] right shoulder, [and] pain on the right side of [her]
neck.” Plaintiff also complained of "headaches" that made "[her] eyes hurt"
and her "fingers tingle on [her] right hand when [her] shoulder is hurting."
Plaintiff told Laraway that her arm and shoulder pain was limiting her ability
to fully raise her arm.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
When Laraway asked Plaintiff how long the pain had been bothering her, she
replied about a month, but it had become worse in the last couple weeks.
Plaintiff then explained that the pain was so bad on January 22, 2008 that she
was forced to leave work early. She also stated that she was unable to work
on January 23, 2008, since she could not get out of bed due to the muscle
spasms she was having up her back and over her neck. Plaintiff also
mentioned that she had been treated for the same problem approximately two
months earlier. After hearing Plaintiff's complaints, Laraway sent Plaintiff
to Urgent Care in Midland for care. Plaintiff was diagnosed with tendonitis
and cervical strain. The doctor imposed restrictions of no lifting, pushing, or
pulling greater than five pounds.
As a result of her restrictions, Defendant placed Plaintiff off work on January
30, 2008. Defendant provided Plaintiff an employee's report of claim for
worker's compensation benefits. This was the third time that Defendant had
done so. On January 31, 2008, Defendant prepared an employer's basic
report of injury for Plaintiff. Defendant's insurance carrier authorized
Plaintiff to receive medical treatment and medications.
While Plaintiff was on leave, on February 21, 2008, she was given a $ 1.00
per hour wage increase. On the wage increase form, it was noted that
Plaintiff had a "good desire to learn the trade." On March 24, 2008,
Defendant evaluated Plaintiff's job performance as a pipe fitter one for the
time period of September 1, 2007 through March 1, 2008. Plaintiff's overall
rating was 80.33%. It was noted that Plaintiff continued to have problems
with “ISO reading/orientation,” “layout/mathematics,” “specs and P& ID's,”
“threaded piping/lined piping/takeoff,” “material identification & count,” and
“teamwork.”
In May 2008, Plaintiff was cleared to return to work without restrictions.
Defendant asserts, however, that it had little work and was in the process of
reducing the workforce, and that on May 19, 2008, it laid Plaintiff off. Other
male pipefitters were also laid off including Richard Libera, Austin
Hammond, and Nick Witzke.
In June 2008, Johnson informed her that she would not be called back from
lay off “due to her inability to perform her necessary job duties.” At a
meeting with Plaintiff and Keri Prybynski, a human resources representative,
Johnson told Plaintiff that her employment was being terminated because she
did not meet the physical requirements of the job. Plaintiff testified that
Johnson threw up his hands and said, “you're going to get hurt, Amy, in this
job.”
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
Johnson contends that it initially appeared that Plaintiff “was a good entry
level worker who wanted to learn.” Then, “even after Plaintiff took the ABC
training, it became apparent that Plaintiff needed assistance and improvement
in isometric diagrams (three dimensional drawings), reading orientation,
lay/mathematics, sec's P&ID's, handling piping and materials, threaded
piping/lined, piping take off, material identification & count, team work and
to focus on her job and now what others around her were doing.” At some
point, Plaintiff was enrolled in an eight week enhancement program to try to
help her with being able to read and properly implement isometric drawings
used in the pipe fabrication process. The enhancement program instructor
told Plaintiff, “I have to be honest with you. This is way over your head.”
Plaintiff agreed.
Johnson maintains that his decision to terminate Plaintiff's employment:
took into account Plaintiff's coworkers [sic] concerns about
Plaintiff's inadequate work performance and their concerns
that she was not able to properly perform the job. This
included them describing Plaintiff as a “bottleneck” and
“stumbling block” in the pipe fabrication process at JEJ. They
informed me that Plaintiff's co-workers repeatedly had to step
in and do her job for her which took them away from their
jobs. My observation of Plaintiff was that she had serious
short comings in performing the pipe fitter job.
Johnson specifically identified Kevin Roberson and Kirk Shankel as having
described Plaintiff as a bottleneck. They also “reported that other coworkers
had to do a lot of the lifting of heavy pipe materials for Plaintiff and they
found it necessary to show her how to put the materials together before they
could do their welding jobs.” Johnson stated that “[w]hen Plaintiff was
supposed to be helping her coworkers, including the welders, with preparing
piping for assembly and welding, she would complain about her job
including, but not limited to, that the grinder hurt her hand, that she could not
carry heavy materials.”
Plaintiff testified that she had a coworker, Quincy, do the heavy lifting of
pipes because “he was so much stronger than me to do that,” but also because
he “didn't like cleaning parts” or “running the grinder.” Defendant also
advances the affidavit of Melissa Mantooth, a female pipefitter-welder who
was assigned to Defendant by an employment agency from about August 13,
2007 to December 14, 2007, describing a time when Plaintiff used the wrong
type of piping, resulting in the loss of time and other resources. Mantooth
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
states that “[t]his as [sic] not a one time occurrence.” She further states that
“although the Plaintiff was permitted to attempt different job tasks, she did
not have the ability to do the heavy lifting or work at the same speed or do the
same job tasks that the other workers in the pipe fabrication shop did.”
At some point, safety director Bob Laraway expressed concern to Johnson
regarding Plaintiff's “physical ability to perform her job and recommended
a reevaluation of whether or not she could safely work as a pipe fitter or
helper within the job description.” Similarly, Younk testified that Dan Ratell,
the Human Resources Manager, expressed concern as to whether Plaintiff
“could physically do the job or not.”
On February 27, 2009, Defendant sent Plaintiff a letter containing an
unconditional offer to return to work at Defendant as a pipefitter. Plaintiff
did not accept the offer. As of March 3, 2009, Plaintiff admitted that her
shoulder pain “never really improved,” that she was laid off from work on
June 17, 2009 due to not meeting physical requirements and that she could
not physically work as a pipefitter. On July 1, 2009, Plaintiff had right
shoulder surgery. Plaintiff asserts that after her surgery, she could have
physically performed pipefitter job duties as of January 2010.
II.
MacDonald-Bass claims that JEJ treated her differently than similarly situated male
employees in the terms and conditions of employment, in violation of Title VII and the
Michigan Elliott-Larsen Civil Rights Act (“ELCRA”). 42 U.S.C. § 2000e-2; MCLS §
37.2202(1)(a) et. seq. Both statutes prohibit employment discrimination based upon a
person’s sex.1 MacDonald-Bass does not submit direct evidence of intentional
1
Because Michigan courts evaluate ELCRA claims at the summary judgment stage
in the same manner as Title VII, we consider both claims together. Harrison v. Olde Fin.
Corp., 225 Mich. App. 601, 609-10 (Mich. Ct. App. 1997); Lytle v. Malady, 458 Mich. 153,
173 n.19 (1998) (explaining that Michigan’s four-part test is an “adaptation of the United
States Supreme Court’s McDonnell Douglas test”). In any event, MacDonald-Bass has
waived them because she raised them for the first time in her motion for reconsideration. See
generally Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“We have found
issues to be waived when they are raised for the first time in motions for reconsideration.”).
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
discrimination, and thus, both parties analyze this case under the McDonnell Douglas
burden-shifting paradigm. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Risch v. Royal
Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009) (citation omitted). First, a plaintiff
must establish a prima facie case of discrimination. Risch, 581 F.3d at 391 (citation
omitted). If the plaintiff does so, the burden shifts to the defendant to offer evidence of a
legitimate, nondiscriminatory reason for the adverse employment decision. Id. If the
defendant offers such evidence, the burden shifts back to the plaintiff to identify evidence
from which a reasonable jury could conclude that the proffered reason was mere pretext for
discrimination. Id.
We review a grant of summary judgment de novo, assessing the evidence, facts, and
inferences in the light most favorable to the nonmoving party. Bazzi v. City of Dearborn,
658 F.3d 598, 602 (6th Cir. 2011) (citation omitted).
A. Prima Facie Case
To establish a prima facie claim of sex discrimination, MacDonald-Bass must show:
“(1) she is a member of a protected group; (2) she was subjected to an adverse employment
decision; (3) she was qualified for the position; and (4) she was replaced by a person outside
the protected class, or similarly situated non-protected employees were treated more
favorably.” Vincent v. Brewer, 514 F.3d 489, 494 (6th Cir. 2007); see also Lytle, 458 Mich.
153, 173 n.19 (1998) The only dispute here is whether MacDonald-Bass has presented
sufficient evidence that similarly situated male employees were treated more favorably or
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
that she was replaced by a male employee. To be “similarly situated,” a plaintiff must show
that the comparable employee is similar in “all of the relevant aspects.” Martin v. Toledo
Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (citation omitted and
emphasis in original). In making this determination, courts assess certain factors, such as
whether the comparable employees:
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.
Noble v. Brinker Int’l, Inc., 391 F.3d 715, 729 (6th Cir. 2004) (citation omitted).
MacDonald-Bass contends that Duane Praither and Jake Rowley are similarly situated
male employees who were treated more favorably. The district court found that neither
Praither nor Rowley were similarly situated. We agree. Although both MacDonald-Bass and
Praither suffered a work-related injury and were placed on medical leave, Praither has not
attempted to return to work nor is there evidence he has been cleared to return. He is
therefore not a similarly situated employee.
The district court’s determination that Rowley is not similarly situated is also correct.
Although MacDonald-Bass emphasizes that she and Rowley were both hired as entry-level
helpers, Rowley had relevant prior experience as a welder, machinist, and fabricator that
MacDonald-Bass did not. Contrary to the dissent’s assertion that “the record contains no
evidence that experience in welding is relevant to the skills necessary to progress as a pipe
fitter,” the record establishes that the role of the pipe fitters is to prepare the pipes for the
welders and work alongside the welders. Welding experience is therefore directly relevant
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
to the duties of a pipe fitter and is undoubtedly a relevant “differentiating or mitigating”
circumstance that distinguishes him from MacDonald-Bass. Accordingly, MacDonald-Bass
has not established a prima facie case of sex discrimination.2
B. Pretext
Even assuming MacDonald-Bass could establish a prima facie case, she must also
demonstrate pretext since JEJ’s reasons for her dismissal—physical inability and job
performance—are legitimate and nondiscriminatory. A plaintiff may establish pretext by
showing that the defendant’s proffered reason: (1) has no basis in fact; (2) did not actually
motivate plaintiff’s termination; or (3) was insufficient to warrant plaintiff’s termination.
Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). “Poor performance is a
legitimate non-discriminatory reason for terminating an employee.” Stockman v. Oakcrest
Dental Ctr., P.C., 480 F.3d 791, 802 (6th Cir. 2007) (citation omitted). To avoid summary
judgment, “a plaintiff must produce sufficient evidence from which a jury could reasonably
reject the defendant’s explanation of why it fired her.” Chen, 580 F.3d at400.
The district court found that MacDonald-Bass had not demonstrated pretext. Again,
we agree. JEJ asserts it terminated MacDonald-Bass because of poor job performance and,
relatedly, her physical inability to do the job. When asked why Johnson did not bring
MacDonald-Bass back to work, Johnson explained:
2
MacDonald-Bass also argues that she was replaced by a male employee. But the
record does not support her assertion, and her statistics argument is also meritless. See
Grano v. Dep’t of City of Columbus, 637 F.2d 1073, 1078 (6th Cir. 1980) (discounting
statistical evidence when no additional evidence involving relevant labor market).
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
Because I didn’t feel she was learning the trade, she was having issues with
physical capabilities working with the bigger bore pipe and stuff, which at the
time we was [sic] doing a lot of, and I just felt it was in her better interest,
and mine.
The record compels the conclusion that Johnson had an honest belief that
MacDonald-Bass had difficulties on the job, particularly the demanding physical
requirements. See Chen, 580 F.3d at 401 (“[W]hen 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.”) (citation and quotation marks omitted). Johnson testified about specific
conversations he had with Schenkel involving MacDonald-Bass’s physical limitations.
Younk also testified that he and Johnson discussed MacDonald-Bass’s physical ability to do
the job. Johnson testified that he received reports from other employees that MacDonald-
Bass was having a difficult time with the job, and all of the employee affidavits – by
Roberson, Kirk Schenkel, and Mantooth – corroborate this.
In the face of this evidence, MacDonald-Bass advances three arguments. First, she
contends that none of her contemporaneous employment records reveal any concerns with
her job performance or physical ability to perform the job duties. The record tells a different
story, however. Each of the employment evaluations lists performance areas in which
MacDonald-Bass needed improvement, and she readily admitted that a classroom course was
way over her head. And MacDonald-Bass’s history of shoulder problems further undercuts
her argument. Beginning in January 2007, mere months after she began working at JEJ,
MacDonald-Bass began experiencing right shoulder problems, culminating with a diagnosis
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
of tendinitis and cervical strain in January 2008 that forced her to take five months away
from work. After she was placed on restrictions limiting her to lifting no more than five
pounds, the safety director circulated a memo stating that MacDonald-Bass’s “health/safety
issues . . . raise serious concerns as to her physical abilities to perform the current duties she
has been assigned.” MacDonald-Bass’s physical injuries and the contemporaneous medical
reports provide strong support that Johnson honestly doubted her physical ability to do the
job.
Second, MacDonald-Bass contends that JEJ’s stated reason for terminating her has
shifted, providing evidence of discrimination. For this, MacDonald-Bass relies heavily on
Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 587 (6th Cir. 2002), in which we explained
that “shifting justifications over time calls the credibility of those justifications into
question.” Id. at 592. MacDonald-Bass’s argument is misplaced. Unlike here, the initial
reason management gave for firing the plaintiff in Cicero was categorically different from
the reason proffered during litigation. But both this Circuit and others have recognized that
providing additional non-discriminatory reasons that do not conflict with the one stated at
time of discharge does not constitute shifting justifications. Alexander v. Ohio State Univ.
Coll. of Soc. Work, 429 F. App’x 481, 489-90 (6th Cir. 2011) cert. denied, 132 S. Ct. 528
(U.S. 2011) (applying Cicero). See also Tidwell v. Carter Products, 135 F.3d 1422, 1428
(11th Cir. 1998) (“the existence of a possible additional non-discriminatory basis for
Tidwell’s termination does not, however, prove pretext.”); Nidds v. Schindler Elevator
Corp., 113 F.3d 912, 918 (9th Cir. 1996) (“the reasons given by Schindler are not
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
incompatible, and therefore not properly described as ‘shifting reasons.’”). Here, JEJ’s initial
reason has remained the same, albeit expanded, throughout this litigation: JEJ continues to
emphasize MacDonald-Bass’s physical ability as a large part of the reason it terminated her.
It also points to the related issue of her performance struggles, which were partly a result of
her physical shortcomings and partly a result of her difficulty in retaining the material. We
agree with the district court that MacDonald-Bass’s performance issues are substantially
interrelated with her physical abilities and that JEJ’s reasons have not shifted.
Third, MacDonald-Bass’s strongest argument, is that she repeatedly complained she
was not receiving hands-on pipefitting experience while other male employees around her
were. Such hands-on experience, Johnson explained, is necessary to progress as a pipe fitter.
Thus, MacDonald-Bass says, JEJ put her into a catch-22 situation, in which she was expected
to advance in her skills but was not given the necessary hands-on training to do so.
This argument is not without logical force. But the evidence shows that JEJ
attempted to assist MacDonald-Bass in various ways, including pairing her with an
experienced journeyman to help overcome her deficiencies. MacDonald-Bass also admitted
that she did in fact have responsibilities that included retrieving, cleaning, measuring,
cutting, and preparing the fittings for the welders based on isometric drawings. Since the
description of the pipe fitter at JEJ is to prepare the pipe for welding, the specific “hands-on”
experience she claims to have been denied remains unspecified. MacDonald-Bass has also
not clarified whether she believes she was denied hands-on training or the opportunity for
hands-on experience, but instead treats the two concepts interchangeably. In either event,
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
the record shows that JEJ provided her with specific classes, direct pairing with a
journeyman, reviews that identified the areas she needed to improve, and a shop environment
where she can develop her skills at her own pace. That others with prior related experience
advanced faster in this environment is not a showing of discrimination. Additionally,
Johnson both hired and fired MacDonald-Bass, providing further evidence that his decision
to fire her was not discriminatory. See generally Wexler v. White’s Fine Furniture, 317 F.3d
564, 573 (6th Cir. 2003) (discussing same-actor inference).
MacDonald-Bass has failed to raise a material factual dispute about whether Johnson
honestly, reasonably believed she could not physically perform the duties of a pipe fitter.
She therefore fails to demonstrate pretext, and her sex discrimination claim fails.
III.
MacDonald-Bass also claims that JEJ unlawfully retaliated against her because she
filed a worker’s compensation claim. The Michigan Workers’ Disability Compensation Act
(“WDCA”), MCL § 418.101 et seq, provides that an employer “shall not discharge an
employee or in any manner discriminate against an employee . . . because of the exercise by
the employee . . . of a right afforded by this act.” MCL § 418.301(11). A prima facie claim
of retaliation under the WDCA has four elements a plaintiff must show: (1) plaintiff asserted
her worker’s compensation rights; (2) defendant laid off or failed to recall plaintiff; (3)
defendant’s stated reason for its actions was a pretext, and (4) defendant’s true reasons for
its actions were in retaliation for plaintiff’s having filed a worker’s compensation claim.
Chiles v. Machine Shop, Inc., 238 Mich. App. 462, 469 (Mich. Ct. App. 1999); Bush v.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
Peninsular Realty, 2011 Mich. App. LEXIS 2179, at *3 (Mich. Ct. App. Dec. 13, 2011). The
plaintiff bears the burden of demonstrating a “causal connection between the protected
activity, i.e., the filing of his worker’s compensation claim, and the adverse employment
action.” Chiles, 238 Mich. App. at 470. The filing of the worker’s compensation claim must
also be a “significant factor” in the employer’s decision to discharge the plaintiff. Taylor v.
General Motors Corp, 826 F2d 452, 456 (6th Cir. 1987) (citation omitted); Truthan v.
Butterworth Health Corp., 1999 Mich. App. LEXIS 2205, at *7 (Mich. Ct. App. Dec. 17,
1999).
The key issue is whether MacDonald-Bass can show a causal connection between
being fired and filing her claim. MacDonald-Bass contends that she was medically cleared
to return to work, but less than a month later, she was terminated. This temporal proximity,
coupled with Johnson’s statement that she was going to be hurt, establishes a causal
connection, according to MacDonald-Bass. But Michigan law is clear that a temporal
connection, without more, is insufficient to demonstrate a causal connection. See West v.
GMC, 469 Mich. 177, 186 (2003) (“[A] temporal relationship, standing alone, does not
demonstrate a causal connection between the protected activity and any adverse employment
action”); cf. Garg v. Macomb County Community Mental Health Serv., 472 Mich. 263, 696
N.W.2d 646, 660 (Mich. 2005) (citing West). Although in some cases a very close temporal
relationship may be sufficient evidence of causation, West holds that generally, “[s]omething
more than a temporal connection between protected conduct and an adverse employment
action is required to show causation where discrimination-based retaliation is claimed.” Id.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
The only additional evidence upon which MacDonald-Bass relies, apart from
temporal proximity, is Johnson’s statement that she was going to get hurt. At best, the
statement demonstrates that Johnson was concerned about MacDonald-Bass getting hurt in
the future and in no way indicates that the worker’s compensation claim played a significant
role in Johnson’s decision to fire her.3 MacDonald-Bass overlooks that she filed two
previous worker’s compensation claims with no adverse consequences, and she cites no
evidence that anyone at JEJ objected to or tried to interfere with her medical leave or benefits
for the third claim. Hephner v. M&S Mfg. Co., 2005 Mich. App. LEXIS 3124, at *5 (Mich.
Ct. App. Dec. 13, 2005).
MacDonald-Bass relies on Stephens v. Neighborhood Serv. Org., 2008 U.S. Dist.
LEXIS 63279 (E.D. Mich. Aug. 19, 2008) to suggest that temporal proximity “tends to
indicate” that temporal proximity alone is enough to establish causation. Despite the single
statement on which MacDonald-Bass relies, Stephens, in fact, accords with West. In
Stephens, the plaintiff presented evidence in addition to temporal proximity, including
evidence that cutbacks were not necessary when the plaintiff was fired and that upper
management inquired into the cost of the worker’s compensation benefits. Id. at *20-21. As
in West, MacDonald-Bass has not “shown any reaction or conduct of [her] supervisors that
3
Although JEJ contends that MacDonald-Bass’s retaliatory discharge claim is
foreclosed because it is based on anticipation of filing a worker’s compensation claim, JEJ
is mistaken. The cases on which JEJ relies are limited to situations in which a person has
not already filed a claim or otherwise asserted rights under the WDCA. Lamoria v. Health
Care & Ret. Corp., 584 N.W.2d 589, 600-01 (Mich. Ct. App. 1998), vacated and reinstated
in pertinent part at 233 Mich. App. 560 (1999); Howe v. World Stone & Tile & Rob Straky,
2008 Mich. App. LEXIS 1165, at *7 n.7 (Mich. Ct. App. June 3, 2008).
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
reasonably suggests that they were upset by the fact that” she filed a worker’s compensation
claim, 469 Mich. at 187, nor has she shown that filing the claim was a significant factor in
Johnson’s decision to terminate her.
In our view, MacDonald-Bass has failed to present evidence to allow a reasonable
jury to find a causal connection. Accordingly, she fails to state a claim under the WDCA,
and even if she did, our earlier holding that she failed to demonstrate pretext applies with
equal force to her retaliation claim.
IV.
For these reasons, we AFFIRM the district court’s grant of summary judgment.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I
concur in the majority opinion with respect to MacDonald-Bass’s worker’s compensation
claim. Although this is a close case, I respectfully dissent from the majority’s conclusion that
her sex discrimination claim fails. Because I conclude that MacDonald-Bass has established
a prima facie case of sex discrimination and sufficient evidence of pretext, I would reverse
the district court’s grant of summary judgment.
The district court found that Rowley was not similarly situated for two reasons – he
had no “documented performance problems” and he had prior relevant work experience.
MacDonald-Bass, 2010 U.S. Dist. LEXIS 75961, at *25. But any documented performance
issues go to whether JEJ’s decision to terminate MacDonald-Bass was legitimate and
nondiscriminatory, and Rowley’s experience was in welding, not pipe fitting.
This court has “cautioned against improperly considering the employer’s proffered
reason for termination as a ‘predicate for finding [the plaintiff] to have failed to make a
prima facie case.’” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 587 (6th Cir. 2002);
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc) (“[A]
court may not consider the employer’s alleged nondiscriminatory reason for taking an
adverse employment action when analyzing the prima facie case.”). By relying on
MacDonald-Bass’s alleged performance problems in finding Rowley not similarly situated,
the district court “improperly conflat[ed] the distinct stages of the McDonnell Douglas
inquiry.” Cline v. Catholic Diocese, 206 F.3d 651, 661 (6th Cir. 1999).
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
The district court’s determination that Rowley was not similarly situated because of
his work experience is also problematic. Rowley’s work experience was in welding, and as
Johnson acknowledged, Rowley had “very minimal” experience in pipe fitting. The record
contains no evidence that experience in welding is relevant to the skills necessary to progress
as a pipe fitter. Pipe fitting, for example, involves interpreting isometric drawings, tracing,
testing, understanding specs, layout work, material identification and count, and flame
cutting. Nothing in the record, including Rowley’s own description of his past work,
indicates that he had any experience in these areas. If Rowley’s prior welding experience
were as relevant to pipe fitting as JEJ now asserts, one may reasonably question why
MacDonald-Bass and Rowley would both be hired into the same entry-level position of
helper.
We have repeatedly held both that a plaintiff “need not demonstrate an exact
correlation with the employee receiving more favorable treatment in order for the two to be
considered ‘similarly-situated,’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
352 (6th Cir. 1998); Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 411 (6th
Cir. 2008), and that the burden of establishing a prima facie case is not intended to be
onerous. Dunlap v. Tenn. Valley Auth., 519 F.3d 626, 630 (6th Cir. 2008); see also Dews v.
A.B. Dick Co., 231 F.3d 1016, 1022-1023 (6th Cir. 2000) (“If . . . reasonable minds could
differ as to whether a preponderance of the evidence establishes the facts of a [Title VII]
prima facie case, then a question of fact does remain, which the trier of fact will be called
upon to answer.”). In my view, MacDonald-Bass met that burden.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
MacDonald-Bass also presented evidence from which a reasonable jury could
conclude she was treated differently from Rowley. Although MacDonald-Bass was told she
could not be considered for pipe-fitting work until she had completed the ABC training
program, Rowley was permitted to perform pipe-fitting work before he completed the
training. The district court also gave inadequate consideration to MacDonald-Bass’s
argument that she was never allowed to get the requisite hands-on training to perform
adequately. Johnson testified repeatedly that hands-on training was necessary to progress,
and MacDonald-Bass presents ample evidence that she was not given this training.
The district court also found that MacDonald-Bass failed to present sufficient
evidence of pretext. The district court rejected MacDonald-Bass’s contention that JEJ’s
reason for terminating her had shifted, finding instead that MacDonald-Bass’s alleged
performance problems and her physical problems were “interrelated.” The district court
determined that MacDonald-Bass had provided “no evidence to suggest that Defendant
terminated her employment based on her gender.”
MacDonald-Bass contends that JEJ’s stated reason for terminating her has shifted.
We have explained that an employer’s shifting reasons provide evidence of pretext. Cicero,
280 F.3d at 592 (“Shifting justifications over time calls the credibility of those justifications
into question.”); see also Clay v. UPS, 501 F.3d 695, 713 (6th Cir. 2007) (noting defendant’s
“changing rationale” casts doubt on defendant’s stated reason). According to MacDonald-
Bass’s uncontroverted testimony, Johnson stated she was “going to get hurt” as the reason
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
he was firing her. Other record evidence corroborates that JEJ’s stated reason at the time
Johnson fired her was her physical inability to do some of the heavy lifting.
Both at the district court and in this appeal, however, JEJ’s stated reason is
MacDonald-Bass’s “poor job performance.” Appellee’s Br. at 29. Although JEJ maintains
that part of the reason for MacDonald-Bass’s termination was her physical inability to do the
job, JEJ now alleges that MacDonald-Bass needed assistance in reading and interpreting
isometric drawings and specs and received the lowest score in an isometric-enhancement
course. JEJ attempts to conflate the two reasons, but the emphasis in this litigation on
MacDonald-Bass’s alleged performance problems reasonably can be seen as an after-the-fact
explanation. The only pre-litigation, documented performance problem involved the
isometric enhanced-training class MacDonald-Bass admits was over her head. But she had
not reached a point in her training to be equipped to succeed in the class, and even after the
class, she continued to receive favorable evaluations. Every evaluation MacDonald-Bass
received was acceptable or good, including a pay raise and a favorable job performance
evaluation a mere three months before she was terminated. When asked about this
discrepancy, Johnson responded that she was given the pay raise, “[b]ased on what she could
do, yes.”
Further, everyone – MacDonald-Bass, Younk, Johnson, and Ratell – acknowledges
that MacDonald-Bass expressed her concerns that she was not getting hands-on experience.
Although JEJ asserts that it attempted to provide MacDonald-Bass with additional training
to assist her progression, MacDonald-Bass testified that when she asked Johnson about why
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
she was not permitted to perform hands-on fitting work, Johnson responded that it was not
his responsibility and that she should talk to Dave, her foreman. But Dave had already told
MacDonald-Bass that he thought it was “ridiculous” that she would be the pipe fitter up front
and that he did not want her to do it. MacDonald-Bass also testified that when she
complained to Younk about this, he said he was afraid this was going to happen. The record
raises a material factual dispute about whether JEJ’s stated reason for terminating
MacDonald-Bass is pretextual.
Finally, none of MacDonald-Bass’s performance evaluations contained reference to
her purported physical inability to perform the duties of the job, and no one ever discussed
with MacDonald-Bass her physical capability to do the job. JEJ now points to various
affidavits from MacDonald-Bass’s coworkers referencing her physical problems. But we are
“skeptical of undocumented accounts of employee conduct that may have been created
post-termination.” Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 502 (6th
Cir. 2007). JEJ’s reliance on Laraway’s memo that he wrote when MacDonald-Bass went
on medical leave is misplaced. The memo was written before MacDonald-Bass was cleared
to return to work without restrictions. JEJ’s unconditional offer to MacDonald-Bass to
return to work as a pipe fitter further undercuts its argument that she was incapable of
performing the duties of the job.1
1
JEJ submitted the letter containing the offer as an exhibit to its motion for summary
judgment in the district court and does not raise any issue with Federal Rule of Evidence 408.
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No. 10-2318, MacDonald-Bass v. JE Johnson Contracting, Inc.
Making inferences in the light most favorable to MacDonald-Bass, I conclude she has
set forth sufficient evidence from which a reasonable jury could choose to disbelieve JEJ’s
stated reason. Accordingly, she has demonstrated a material factual dispute about whether
JEJ’s stated reason for terminating her is pretext for discrimination.
For these reasons, I conclude the district court’s summary judgment order should be
reversed. I therefore respectfully dissent.
23