Efeosa Idemudia v. J.P. Morgan Chase

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0583n.06
No. 10-1074
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 18, 2011
EFEOSA IDEMUDIA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
J.P. MORGAN CHASE, a )
corporation; MICHAEL BAERS, an )
individual, ) OPINION
)
Defendants-Appellees. )
_______________________________________)
Before: SUHRHEINRICH, MOORE, and COOK, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Efeosa Idemudia appeals
the district court’s grant of summary judgment to Defendants-Appellees J.P. Morgan Chase Bank,
N.A. (“Chase”) and Michael Baers (together, “Defendants”), on his claim of race and national-origin
discrimination brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and
Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”). Because Idemudia has not presented
evidence sufficient to raise a genuine issue of material fact with respect to whether Defendants’
legitimate, nondiscriminatory reasons for terminating him are pretext for discrimination, we
AFFIRM the district court’s grant of summary judgment.
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I. FACTS & BACKGROUND
Idemudia is an African American who was born in Nigeria. He started working for Chase
in 1996 as a bank teller in New York City. While working for Chase in New York, Idemudia was
promoted to several different teller positions and then to the position of a personal banker. In
November 2006, he was promoted to branch manager for a new branch that opened in Kalamazoo,
Michigan in April 2007. Also in April 2007, Baers, who is white, became the District Manager
overseeing Idemudia’s branch.
On May 2, 2007, Chase Field Operations Service Coach John Tinay conducted a routine audit
visit to assess coaching needs; he provided feedback and rated the branch as “Needs Work.” R.52
Ex. 32 (Record of Branch Visit). Idemudia testified that Tinay worked with the branch’s assistant
branch manager (“ABM”) Robert Byrd during this training visit and that the only issue that Tinay
discussed with Idemudia was communications issues between Idemudia and Byrd.
On May 16, 2007, personal banker Malisa Gries brought her children to the bank, and the
children pulled the fire alarm. The bank was charged $500 for causing the police department to
respond. Idemudia was not at the bank on May 16, 17, or 18, because his wife was in the hospital
delivering their son, and the bank was under the management of ABM Byrd during this time. Also
on May 16, Byrd instructed Gries to lock customer deposits in a teller station, which was against
Chase’s policy and procedure. On June 1, 2007, Chase Global Security and Investigations conducted
an investigation of what happened on May 16. Idemudia first stated that he found the missing
deposits on Saturday, May 19, but, upon reviewing the branch’s video recording, he stated that he
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and Gries found the deposits on Monday, May 21. Idemudia testified in his deposition that he was
confused about the dates because he came into the branch on Saturday even though he was not
supposed to work that day. One report resulting from the investigation indicated that both Byrd and
Idemudia would be suspended. One of the investigators, Ron Philpot, who is African American,
recommended that Idemudia be terminated for the incident because he believed that Idemudia lied
about the customer deposits. Byrd was terminated, but Baers decided not to terminate Idemudia.
Instead, Idemudia was placed on suspension until June 5, 2007. On June 7, 2007, Idemudia was
issued a written warning, which listed numerous concerns with Idemudia’s management of the
branch. Idemudia alleges that Baers added the loss amount on the warning after Idemudia signed
it. Compare R.52 Ex. 25 (written warning with loss amount), with id. Ex. 50 (written warning
without loss amount). He also alleges that he was given a warning by Baers with Baers’s manager
Dan Dubeau present but that Baers switched the documents and gave him a final written warning
without Dubeau present. After Byrd was terminated, Baers did not hire a replacement ABM during
the two-month period that Idemudia remained at the bank.
On June 25, 2007, Tinay conducted another audit visit, again providing feedback and rating
the branch as “Needs Work.” R.49 Ex. 11 (Record of Branch Visit). Idemudia testified that
although the branch did not have an ABM at the time of Tinay’s second visit, Idemudia did not speak
with Tinay about the results of the visit. Baers also met with Idemudia on June 25, 2007, to develop
a “Branch Action Plan.” On June 26, 2007, Chase trainer Serena Ketterer conducted a branch visit
and prepared a report based on her visit. The report noted positive observations from the visit,
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including that the branch had no “loss account warehouse” (“LAW”) losses.1 The report also
indicated areas for improvement, including that Idemudia was “having trouble scheduling the branch
effectively” and that Idemudia had “committed” to taking certain online training courses. R.52 Ex.
41 (Branch Visit Report at 2–3). Ketterer worked directly with Idemudia during this visit, and
Idemudia received by email a copy of her report, which she prepared after her visit. Baers met with
Idemudia again on July 2, 2007 and July 3, 2007, to discuss branch action plans. During Baers’s
visit on July 3, 2007, Baers showed Idemudia examples of other branch action plans, and Idemudia
laughed at them and said they were “ridiculous.” R.49 Ex.14 (Baers documentation at 4); R.49 Ex.
25 (July 21, 2009 Idemudia Dep. at 199).
On July 24, 2007, Idemudia spoke with personal banker Dawn Lyons-Dean regarding an
inappropriate comment that she made to a customer. Lyons-Dean then left the branch when she was
supposed to be working. Idemudia prepared a formal written disciplinary action against Lyons-Dean
for insubordination and, on July 25, 2007, recommended that she be terminated. Idemudia had had
several prior interactions with Lyons-Dean, resulting in written statements. Idemudia also alleged
that Lyons-Dean once commented that she always had been told she would have a supervisor with
“blue eyes, slick hair” and that another time she responded to a statement that Idemudia made about
getting along with his neighbors, who were white, by stating it was “because you’re African, if you
1
A Chase report indicates that “LAW” losses are “[a]ccount related losses that do not include
other losses charged to the branch, i.e. such as teller differences.” R.52 Ex. 26 (LAW report).
Idemudia describes “LAW” losses as “losses that are avoidable, but because the employee didn’t
follow policies and procedures, it resulted in a loss.” R.49 Ex. 25 (July 21, 2009 Idemudia Dep. at
220).
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were African American, that wouldn’t happen.” R.49 Ex. 23 (July 2, 2009 Idemudia Dep. at
109–10). Baers did not accept Idemudia’s recommendation and did not terminate Lyons-Dean.
Baers stated that he did not terminate her because Idemudia did not follow proper procedure with
respect to the writeups and because he had “reason to believe that [Idemudia was] not managing
[Lyons-Dean] properly.” R.49 Ex. 24 (Baers Dep. at 30).
At some point before Idemudia was terminated, Baers asked Idemudia to interview for a
personal banker position available in Stevensville, Michigan. The base pay for the position is less
than Idemudia made as branch manager, and the branch is over forty-five minutes from Idemudia’s
residence. Idemudia alleges that Baers threatened that he would write up Idemudia if Idemudia did
not interview. Idemudia also alleges that, in the same conversation that Baers told Idemudia to apply
for the personal banker position, Baers also told Idemudia that Baers had dated an African American
woman for three years and that she had broken up with him because her family did not approve of
him being white.
On August 1, 2007, Baers came to the branch and asked if Idemudia had completed the
training that Tinay and Ketterer had recommended after their branch visits. Idemudia responded that
he had, but when Baers asked Idemudia to pull up the training on the computer, Idemudia admitted
that he had not completed the training. Idemudia admitted in his deposition that he lied to Baers
about completing the training. When asked why he had lied about the training that Baers requested
him to take, Idemudia responded that the training “was a nuisance” and that “[i]t is like having a fly
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buzzing by your ear, you have to swat the fly off and say just leave me alone.” R.49 Ex. 25 (July 21,
2009 Idemudia Dep. at 108).
Baers gave Idemudia the option to resign or to be terminated. Idemudia testified that he said
he would let Baers know his choice and expressly denies that he told Baers that he would resign.
Idemudia was replaced by a white woman who was initially hired as a branch manager for a branch
that Chase was considering opening in the Battle Creek area but that never in fact opened.
II. PROCEDURAL HISTORY
Idemudia filed a charge of discrimination with the Michigan Department of Civil Rights on
February 22, 2008. After receiving a right-to-sue letter from the U.S. Equal Employment
Opportunity Commission (“EEOC”), Idemudia filed a complaint against Defendants in Michigan
state court alleging one count of race and national origin discrimination under Title VII, the ELCRA,
and § 1981. Defendants2 removed the case to the United States District Court for the Western
District of Michigan pursuant to 28 U.S.C. §§ 1441, 1446. After discovery, Defendants filed a
motion for summary judgment. At a hearing on the motion, the district court orally announced its
2
Chase filed the Notice of Removal, which does not name Baers as joining in the removal.
Even if the failure to name Baers in the Notice of Removal is a procedural defect pursuant to the
“rule of unanimity,” which requires all properly served or joined defendants to join in the removal
or to file a written consent to the removal, but see Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195,
201–02 (6th Cir. 2004) (suggesting that technical deficiency in notice of removal can be cured by
subsequent filings indicating consent to removal), Idemudia waived any challenge to this potential
procedural defect by failing to file a motion to remand within thirty days of removal. Loftis v. United
Parcel Serv., Inc., 342 F.3d 509, 516–17 (6th Cir. 2003) (citing 28 U.S.C. § 1447(c); Page v. City
of Southfield, 45 F.3d 128, 133–34 (6th Cir. 1995)).
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decision granting Defendants’ motion. The district court subsequently entered judgment dismissing
the case, and Idemudia timely appealed.
III. ANALYSIS
A. Standard of Review
“We review the district court’s grant of summary judgment de novo.” Hamilton v. Gen. Elec.
Co., 556 F.3d 428, 433 (6th Cir. 2009). Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Additionally, we must view all facts and inferences in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
B. Race and National-Origin Discrimination Claim
Idemudia claims that he was terminated because of his race and national origin.3 Title VII
of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals “with
respect to his compensation, terms, conditions, or privileges of employment” because of race or
national origin. 42 U.S.C. § 2000e-2(a)(1). Similarly, Michigan’s ELCRA prohibits employers from
discriminating against individuals “with respect to employment, compensation, or a term, condition,
3
Defendants argue that Idemudia did not exhaust his administrative remedies with respect to
his claim of national-origin discrimination because he did not identify national origin as a basis on
his charge of discrimination. Because exhaustion of administrative remedies is not a jurisdictional
prerequisite, Mitchell v. Chapman, 343 F.3d 811, 819–20 (6th Cir. 2003), cert. denied, 542 U.S. 937
(2004), and because we agree on the merits with the district court’s decision to grant summary
judgment, we need not address this argument.
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or privilege of employment” because of race or national origin. MICH . COMP . LAWS § 37.2202(1)(a).
Section 1981 guarantees that “[a]ll persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white
citizens.” 42 U.S.C. § 1981(a). We review claims of discrimination brought under the ELCRA and
§ 1981 under the same standards as claims brought under Title VII. White v. Baxter Healthcare
Corp., 533 F.3d 381, 391 (6th Cir. 2008), cert. denied, 129 S. Ct. 2380 (2009); Sutherland v. Mich.
Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003).
1. Direct Evidence
Idemudia’s arguments to the district court and on appeal rely on the burden-shifting
framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), for claims involving circumstantial evidence of discrimination. Nonetheless, within his
analysis of the three-step McDonnell Douglas framework, Idemudia asserts that Baers’s statement
that Baers once dated an African American woman but that she broke up with him because he is
white is direct evidence of discrimination. The district court stated that Idemudia did not raise a
claim using direct evidence and that there was “no [direct] evidence in any event,” and proceeded
to analyze the case, as the parties presented it, under the McDonnell Douglas framework. R.66 (Hr’g
Tr. at 44). Defendants argue on appeal that Idemudia failed to raise a direct-evidence argument in
the district court and that Baers’s statement was not “a negative reference to Idemudia’s race and
national origin” and “proves nothing negative concerning Baers.” Appellee Br. at 20.
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Idemudia raised the direct-evidence argument to the district court in the same manner as he
does on appeal, and we agree with the district court that he has failed to develop adequately a claim
using the direct-evidence method of proof. See United States v. Stewart, 628 F.3d 246, 256 (6th Cir.
2010) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It 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.” (alteration omitted) (internal
quotation marks omitted)); see also DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (explaining
the framework when plaintiffs presents direct evidence, which differs from the McDonnell Douglas
framework used when plaintiffs present indirect evidence).
Even if we were to consider Idemudia’s argument, it is without merit because Baers’s
statement does not constitute direct evidence of discriminatory intent. “Direct evidence is that
evidence which, if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” DiCarlo, 358 F.3d at 415 (alteration omitted) (internal
quotation marks omitted). “Consistent with this definition, direct evidence of discrimination does
not require a factfinder to draw any inferences in order to conclude that the challenged employment
action was motivated at least in part by prejudice against members of the protected group.” Id.
(internal quotation marks omitted).
Baers’s statement itself is not discriminatory or negative towards Idemudia’s race or national
origin. Cf. id. at 415–16 (supervisor called employee a “dirty wop”). However, “[a]lthough it is true
the disputed [statement] will not always be evidence of racial animus, it does not follow that the
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term, standing alone, is always benign. The speaker’s meaning may depend on various factors
including context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods,
Inc., 546 U.S. 454, 456 (2006). That Baers made the statement in the same conversation that he
allegedly threatened Idemudia about the personal-banker interview suggests that the statement was
intended to express that Baers holds racial animus as a result of the experience with his girlfriend.
Idemudia perceived the statement in this manner. On the other hand, Baers made the statement
regarding his ex-girlfriend in response to a statement by Idemudia that he did not want to go to the
Stevensville branch because he did not “want to go to a place where [he would] stick out like a sore
thumb, be like the only black man in a 100 mile radius.” R.49 Ex. 23 (July 2, 2009 Idemudia Dep.
at 97–98). Baers responded that he “experienced that” and then proceeded to tell Idemudia about
his ex-girlfriend. Id. at 98. When considered in this context, a factfinder could draw the inference
that Baers simply intended to show understanding in response to Idemudia’s expressed concern.
Different inferences could be drawn, and thus Baers’s statement does not “require[] the conclusion”
that Baers was motivated by prejudice. See DiCarlo, 358 F.3d at 415.
2. Indirect Evidence
To prove intentional discrimination using indirect or circumstantial evidence, Idemudia must
use the burden-shifting framework set forth in McDonnell Douglas and modified in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252–53 (1981).4 See White, 533 F.3d
4
Idemudia does not allege a mixed-motive claim pursuant to 42 U.S.C. § 2000e-2(m). See
White, 533 F.3d at 396–402 (rejecting application of the McDonnell Douglas/Burdine framework
for single-motive claims to mixed-motive claims).
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at 391; Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). First, “the plaintiff bears
the initial ‘not onerous’ burden of establishing a prima facie case of discrimination by a
preponderance of the evidence.” White, 533 F.3d at 391 (quoting Burdine, 450 U.S. at 253). Once
the plaintiff establishes a prima facie case, there is a presumption of discrimination, and the burden
shifts to the defendant to rebut the presumption by providing evidence of a “legitimate,
nondiscriminatory reason” for the action taken. Burdine, 450 U.S. at 253–54 (internal quotation
marks omitted). If the defendant satisfies this burden with a legally sufficient explanation, the
burden shifts back to the plaintiff to show that the defendant’s proffered reasons “were not its true
reasons, but were a pretext for discrimination.” Id. at 253. “Throughout this burden-shifting
approach, the plaintiff continues to bear the ultimate burden of proving, by a preponderance of the
evidence, the intent to discriminate.” Wright, 455 F.3d at 707.
a. Prima Facie Case of Discrimination
To demonstrate a prima facie case of discrimination, the “plaintiff must demonstrate that:
(1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse
employment decision; and (4) he was replaced by a person outside the protected class or treated
differently than similarly situated non-protected employees.”5 White, 533 F.3d at 391. It is
5
The fourth prong of the prima facie case for proving discrimination under the ELCRA
requires the plaintiff to show that he “was discharged under circumstances that give rise to an
inference of unlawful discrimination,” Lytle v. Malady, 579 N.W.2d 906, 914 (Mich. 1998), but the
Michigan Supreme Court also has stated that its prima facie case “is an adaptation of the United
States Supreme Court’s McDonnell Douglas test” for discrimination claims brought under Title VII.
Id. at 914 n.19; accord Lind v. City of Battle Creek, 681 N.W.2d 334, 338 (Mich. 2004) (confirming
that the McDonnell Douglas test for a prima facie case applies to claims brought pursuant to the
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undisputed that Idemudia can meet the first and third elements: he is African American and he was
terminated. In their motion for summary judgment, Defendants alleged that Idemudia could not
satisfy the second and fourth elements of the prima facie case. The district court assumed for
purposes of its analysis that Idemudia had demonstrated a prima facie case and proceeded to decide
the case under the analysis of whether Defendants’ reasons for terminating Idemudia were legitimate,
nondiscriminatory reasons, and, finding that they were, whether the reasons were pretext for
discrimination.
We conclude that Idemudia has satisfied the second and fourth elements of the prima facie
case. When considering the second element of the prima facie case, we “focus on a plaintiff’s
objective qualifications to determine whether he or she is qualified for the relevant job.” Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 575 (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. To do so would bypass the burden-shifting analysis and
deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality
a pretext designed to mask discrimination.” Id. at 574. Idemudia had worked at Chase for eleven
years and “was an above average [personal banker]” in a branch in New York City, which “is why
he was selected to” the branch manager position in Michigan. R.55 Ex. A (Performance Review at
1). Chase does not dispute that Idemudia’s branch produced “good numbers.” R.49 Ex. 24 (Baers
Dep. at 44–47, 58). Thus, Idemudia has demonstrated that he was objectively qualified for the
ELCRA); Hazle v. Ford Motor Co., 628 N.W.2d 515, 521 (Mich. 2001) (same).
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position, and Defendants’ more subjective reasons for terminating Idemudia for his inability to
manage should not be considered at the prima facie stage. Idemudia also satisfied the fourth element
of the prima facie case because he was replaced by a white female.
Because Idemudia has established a prima facie case, there is a presumption of
discrimination, and the burden shifts to Defendants to rebut the presumption with a legitimate,
nondiscriminatory reason for terminating Idemudia.
b. Legitimate, Nondiscriminatory Reason
Defendants claim that Idemudia was terminated because of his inability to manage the
branch. Specifically, the Recommendation for Termination that Baers sent to Chase management
states that he recommended terminating Idemudia “because of unsatisfactory performance, lack of
leadership ability, poor management of the branch, operations issues, [and] failure to follow policy
and procedure.” R.52 Ex. 17 (Rec. for Termination); accord R.49 Ex. 22 (EEOC Letter at 2)
(“[Defendants] provided information that the decision to terminate your employment was not based
on the revenue generated by the branch during the first months after it opened. It was based on your
lack of leadership ability, poor management of the branch, operations issues, and failure to follow
policy and procedures which created unacceptable risk for the branch.”). Although the five reasons
listed on the Recommendation for Termination are very general, the document further states that
Idemudia “was given a written warning regarding these issues on June 7, 2007 along with several
follow up meetings discussing his lack of progress during June and July of 2007.” R.52 Ex. 17 (Rec.
for Termination); see R.52 Ex. 25 (Written Warning) (listing “concerns regarding [Idemudia’s]
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leadership as a branch manager”); R.49 Ex.14 (Baers documentation). The written warning and
Baers’s documentation of the meetings that he had with Idemudia provide detail regarding the issues
and events that Defendants claim support their decision to terminate Idemudia. Therefore, we
believe that the Defendants’ proffered reasons for terminating Idemudia are sufficiently “‘clear and
reasonably specific’” and are “supported by ‘admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision [was] not motivated by discriminatory animus.’”
White, 533 F.3d at 392 (alteration in original) (quoting Burdine, 450 U.S. at 257–58).
The proffered reasons thus constitute a legally sufficient explanation to rebut the presumption
of discrimination. Furthermore, Idemudia does not dispute that Defendants have put forth a
legitimate, nondiscriminatory reason. See Appellant Br. at 21–46 (arguing that Defendants’
legitimate, nondiscriminatory reasons were pretext); Reply Br. at 6–7.
c. Pretext
The district court’s decision to grant summary judgment in favor of Defendants was based
on its analysis of the final, pretext stage of the McDonnell Douglas/Burdine framework. The district
court stated that there was “[r]epeated evidence that [Idemudia] was not functioning in a way that
a manager would function” and that its “overwhelming review of the record suggests that the defense
actually went out of its way . . . to attempt to keep Mr. Idemudia with the organization in one
capacity or another and not that it was working to remove him from the organization.” R.66 (Hr’g
Tr. at 48, 53). The district court concluded that “the record is really beyond genuine dispute and
beyond reasonable dispute that he was unsuccessful as a branch manager.” Id. at 55.
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To meet his burden of showing pretext, Idemudia “must produce sufficient evidence from
which the jury may reasonably reject the employer’s explanation.” Warfield v. Lebanon Corr. Inst.,
181 F.3d 723, 730 (6th Cir. 1999) (internal quotation marks omitted). More specifically, we have
stated,
Pretext may be established “either directly by persuading the trier of fact that
a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Burdine, 450
U.S. at 256. A plaintiff will usually demonstrate pretext by showing that the
employer’s stated reason for the adverse employment action either (1) has no basis
in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s
action. See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008)
(citing Manzer [v. Diamond Shamrock Chems. Co.], 29 F.3d [1078,] 1084 [(6th Cir.
1994), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., --- U.S. ---, 129
S. Ct. 2343 (2009)]).
White, 533 F.3d at 392–93 (alteration omitted). These three interrelated ways in which a plaintiff
usually demonstrates pretext, however, are not formal requirements; rather, many “form[s] of
circumstantial evidence [can be] probative of intentional discrimination.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000); accord Chen v. Dow Chem. Co., 580 F.3d 394,
400 n.4 (6th Cir. 2009). For example, “the plaintiff may also demonstrate pretext by offering
evidence which challenges the reasonableness of the employer’s decision ‘to the extent that such an
inquiry sheds light on whether the employer’s proffered reason for the employment action was its
actual motivation.’” White, 533 F.3d at 393 (quoting Wexler, 317 F.3d at 578). We “ask whether
the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if so, how
strong it is.” Chen, 580 F.3d at 400 n.4. We ultimately must decide whether the plaintiff’s evidence
of pretext, combined with the evidence establishing the plaintiff’s prima facie case, would “permit
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the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at
147–48; accord Hazle, 628 N.W.2d at 522 (“[A] plaintiff must not merely raise a triable issue that
the employer’s proffered reason was pretextual, but that it was a pretext for unlawful
discrimination.” (alteration omitted) (internal quotation marks omitted)).
Idemudia argues that he has cast doubt on Defendants’ explanation with a variety of
circumstantial evidence, including evidence that Baers made racially motivated remarks to him, that
most of the reasons in the June 7 written warning were no longer a concern by the time he was
terminated, that Defendants’ reasons were contradictory and double standards, and that Baers created
unreasonable expectations for him and no other branch managers. Idemudia also relies heavily on
his branch’s sales production to impugn Defendants’ explanation that Idemudia was terminated
because of his inability to manage the branch.
We agree with Idemudia that the district court did not take into account the evidence that
Baers told Idemudia about a former African American girlfriend who broke up with him. This
statement by the manager responsible for supervising and, later, terminating Idemudia, although not
direct evidence of discrimination, is circumstantial evidence of discriminatory intent. Cf. Risch v.
Royal Oak Police Dep’t, 581 F.3d 383, 392–93 (6th Cir. 2009) (discussing how discriminatory
remarks and evidence of a discriminatory atmosphere can be evidence of pretext); Vincent v. Brewer
Co., 514 F.3d 489, 498 (6th Cir. 2007) (“This court has held that discriminatory remarks may serve
as evidence of pretext because they indicate the presence of animus toward a protected group.”).
Further, the statement was made in the same conversation in which Baers allegedly required
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Idemudia to interview for a personal banker position in another branch forty-five minutes away. We
disagree with the district court’s view that Baers’s act to arrange the interview necessarily supports
a finding of no pretext. Requiring Idemudia to go back to the position of a personal banker after
being promoted to branch manager is likely an adverse employment action, see Schram v. Schwan’s
Sales Enters., Inc., 124 F. App’x 380, 385–86 (6th Cir. 2005) (unpublished decision), and is
discriminatory if the demotion was because of Idemudia’s race. The district court’s view that Baers
was “trying to save a position for him at the bank” is one inference that could be drawn from the
facts, R.66 (Hr’g Tr. at 52), but, in the light most favorable to Idemudia, the inference could be
drawn that Baers was trying to demote Idemudia.6 Idemudia also presented evidence that Dean-
Lyons, the employee whom he recommended for termination, had made racially motivated remarks
to him. See Risch, 581 F.3d at 393 (“We have held that discriminatory remarks, even by a
nondecisionmaker, can serve as probative evidence of pretext.”).
6
At oral argument, counsel for Defendants argued that, under the “same-actor” principle, the
fact that Baers did not follow Philpot’s recommendation to terminate Idemudia after the May 16
incident creates a strong presumption that Baers was not discriminating against Idemudia two
months later when terminating him. See Wexler, 317 F.3d at 572 (“[T]he same-actor inference . . .
allows one to infer a lack of discrimination from the fact that the same individual both hired and
fired the employee.” (internal quotation marks omitted)). Even assuming that the same-actor
principle would be applicable here, we have held that the same-actor inference “is insufficient to
warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue
of material fact.” Id. at 573–74 (en banc). Defendants also highlight the fact that Baers received
approval for Idemudia’s termination from Dubeau’s boss Tony Glover who is an African American;
however, the Supreme Court has “rejected any conclusive presumption that an employer will not
discriminate against members of his own race.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 78 (1998); accord Wexler, 317 F.3d at 574.
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We nevertheless conclude that Idemudia has not presented circumstantial evidence of pretext
that, when considered with the evidence supporting his prima facie case, would allow the trier of fact
to infer intentional discrimination. We recognize at the outset that decisions made on the basis of
subjective criteria, such as whether an employee is an effective manager, can “‘provide a ready
mechanism for discrimination,’” and thus such decisions are “‘carefully scrutinized.’” Scott v.
Eastman Chem. Co., 275 F. App’x 466, 476 (6th Cir. 2008) (unpublished decision) (quoting Rowe
v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir. 1982)). Moreover,
Defendants’ “business judgment” regarding Idemudia’s ability to manage “is not an absolute defense
to unlawful discrimination.” Wexler, 317 F.3d at 576. “[T]he reasonableness of [the] decision may
be considered to the extent that such an inquiry sheds light on whether the employer’s proffered
reason for the employment action was its actual motivation.” Id. However, Defendants supported
their more general, subjective explanation7 with specific examples of management tasks that
Idemudia was told to complete but did not. Defendants state that Idemudia was asked to modify his
staff schedule, complete certain online training courses, and develop branch actions plans with Baers.
7
Of the five general reasons stated on Idemudia’s Recommendation for Termination,
Idemudia does present evidence that he followed correct policy and procedure with respect to
recommending the termination of Lyons-Dean. In his deposition, Baers responded “Yes” when
asked, “How many policies and procedures does Chase have? Did I not follow all of them?” R.49
Ex. 24 (Baers Dep. at 72). When a defendant presents multiple legitimate, nondiscriminatory
reasons for the employment action, however, the plaintiff must demonstrate that each independently
sufficient reason is a pretext for illegal discrimination. Smith v. Chrysler Corp., 155 F.3d 799, 806
(6th Cir. 1998).
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Idemudia has not demonstrated a genuine issue of material fact with respect to the credibility of
Defendants’ reliance on these unperformed management tasks.
With respect to scheduling, Idemudia points to the statement of a Chase investigator involved
in the May 16 incident that Gries “will not be a closer going forward,” R.52 Ex. 34 (Email from
Diane Koltunchik at 2), as evidence regarding the reasonableness of Baers’s criticism of Idemudia’s
scheduling. But the record shows that whether Gries should be scheduled to close was not the only
scheduling problem. The June 7 written warning stated that Idemudia was expected to “[r]eview
staff scheduling with [Baers] and make/communicate changes to [the branch] team” and that
“[c]hanges should be responsive to business needs and ensure equity.” R.52 Ex. 25 (Written
Warning at 2). Ketterer also provided Idemudia with instruction on scheduling. R.49 Ex.12 (Branch
Visit Report at 2). Idemudia, however, continued to utilize a fixed time schedule despite
Defendants’ request that he not. With respect to the online training that Idemudia did not complete,8
he argues that it was not mandatory in the sense that Baers did not tell him that he would be
terminated unless he completed it. But Idemudia does not dispute that Baers told him to complete
the training. Additionally, Ketterer’s report indicates that Idemudia “committed that he [would] take
[certain listed] on-line courses” and lists additional courses that Ketterer noted she “would
recommend” that he take. R.49 Ex.12 (Branch Visit Report at 3). Idemudia did not complete the
training and testified that the training “was a nuisance” and that “[i]t is like having a fly buzzing by
8
Idemudia also admitted that he lied to Baers about whether he completed the training on the
day that Baers terminated him. Defendants, however, do not rely on the fact that Idemudia lied as
a reason for terminating him.
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your ear, you have to swat the fly off and say just leave me alone.” R.49 Ex. 25 (July 21, 2009
Idemudia Dep. at 108).
Idemudia argues that he did not have time to schedule and to complete the training, and that
these expectations were unreasonable given that he did not have a full-time ABM. Idemudia
dismisses the fact that Baers sent him an ABM from another branch to help out, alleging that the
ABM came in whenever she wanted and she did not report to him. Yet, Idemudia also stated that
he did not take the time to speak with Baers about the ABM that he saw on his time sheets because
he “needed a hundred percent focus on [his sales] numbers” and he “couldn’t afford to be
distracted.” R.49 Ex. 25 (July 21, 2009 Idemudia Dep. at 214–16).
With respect to the branch action plans, the June 7 written warning states that Idemudia was
expected to, with Baers, “develop a branch action plan that provides specific expectations for
coaching the staff on [certain sales] behaviors.” R.52 Ex. 25 (Written Warning at 2). Idemudia
admits that when Baers visited the branch on July 3, 2007, and showed Idemudia examples of other
branch action plans, Idemudia laughed at them and said they were “ridiculous.” R.49 Ex.14 (Baers
documentation at 4); R.25 (July 21, 2009 Idemudia Dep. at 199). Idemudia also stated,
[Baers] was trying to do some action plan. . . . [H]e showed me his action plan but
based on the results of my branch, he should be looking at my action plan and saying,
how do you do this, but meanwhile he’s showing me all this other stuff and I’m
going, those branches you’re showing me didn’t make the goal, I blew them away.
The goal—I made a hundred forty-one percent of the goal and yet you’re showing me
all these branches that two campaigns in a row did not make it, yet you want me to
change my style of management to their style when they should be changing their
style to mine. I didn’t understand why he – So that’s why I said, this guy is just not
being fair. I mean, my branch is producing numbers, my branch is clean and yet he’s
forcing me to manage the way other branch managers manage.
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No. 10-1074
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R.49 Ex. 23 (July 2, 2009 Idemudia Dep. at 103–04).
Idemudia argues that Baers created these tasks for him and no other branch managers.
Idemudia specifically points to the online training as something that Baers did not require of other
branch managers. He also argues that, although Chase advises district managers to “use the
numbers” to help branch managers build action plans, Baers admits that he did not “use the
numbers” to help Idemudia. R.49 Ex. 24 (Baers Dep. at 80). Even assuming that Baers treated
Idemudia different than other branch managers with respect to scheduling, training, and building
action plans,9 Idemudia has not demonstrated that the other branch managers were also having
similar or other problems in their branches. Idemudia has provided no evidence that other branch
managers received similar feedback from Chase audits or branch visits or were experiencing similar
problems, and yet were not requested to modify their schedule, take online training, or work with
Baers to develop a different action plan. The evidence regarding the tasks that Idemudia was asked
to complete does not suggest that Defendants’ requests were pretexts for discrimination.
As noted above, Defendants do not dispute that Idemudia’s branch was highly successful in
its sales production. R.49 Ex. 24 (Baers Dep. at 44–47, 58). However, Defendants produced
evidence to support their explanation that they asked Idemudia to perform certain management tasks
that he did not complete. We do not believe that the evidence in the record, with the inferences
drawn in favor of Idemudia, calls into question Defendants’ requests of Idemudia or their subsequent
9
Baers testified, and Idemudia does not dispute, that the training was recommended by Tinay
and Ketterer. R.49 Ex. 24 (Baers Dep. at 77). Ketterer also instructed Idemudia on scheduling.
R.49 Ex.12 (Branch Visit Report at 2).
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decision to terminate Idemudia for failing to complete the tasks as pretext for intentional
discrimination.
C. Rule 38 Request
Finally, Defendants argue in their brief that Idemudia’s discrimination claim is so lacking in
factual and legal bases that we should find his appeal “frivolous” and should provide Defendants the
opportunity to recover damages and costs pursuant to Federal Rule of Appellate Procedure 38.
Because Defendants’ request was “not made in a separately filed motion as Rule 38 requires,” we
deny the request. K & T Enters., Inc., 97 F.3d 171, 181 (6th Cir. 1996); accord Anderson v.
Williamson, 100 F.3d 956, 1996 WL 640464, at *3 (6th Cir. 1996) (unpublished table decision);
Clark v. Cent. Cartage Co., 73 F.3d 361, 1995 WL 758459, at *3 (6th Cir. 1995) (unpublished table
decision). We observe, however, that Idemudia’s appeal was not frivolous.
IV. CONCLUSION
Because Idemudia has not presented evidence sufficient to raise a genuine issue of material
fact as to whether Defendants’ reasons for terminating him were pretext for discrimination, we
AFFIRM the district court’s grant of summary judgment in favor of Defendants on all claims.
22