NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0169n.06

                                        Case No. 19-5778

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                      FILED
GARY TURNER,                                        )                           Mar 24, 2020
                                                    )                       DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
MARATHON PETROLEUM COMPANY,                         )       KENTUCKY
LP,                                                 )
                                                    )
       Defendant-Appellee.                          )


       BEFORE: STRANCH, READLER, and MURPHY, Circuit Judges.

       MURPHY, Circuit Judge. Gary Turner says Marathon Petroleum Company, LP, fired him

because he is African American. Marathon says it fired Turner because he negligently closed the

wrong valve on equipment at its oil refinery, which produced an unsafe buildup of pressure that

could have caused a deadly explosion. We must decide whether Turner amassed enough evidence

to show that Marathon’s safety rationale for his discharge was merely cover for racial discrimina-

tion. The district court held that Turner had not done so. We agree and affirm summary judgment

for Marathon on Turner’s state-law discrimination claim.

       Marathon operates refineries that turn crude oil into gasoline, asphalt, and other petroleum

products. One refinery is located in Catlettsburg, Kentucky. Marathon runs this plant 24-7, relying

on rotating shifts of “utility operators” to perform the day-to-day tasks that keep it going. As
No. 19-5778, Turner v. Marathon Petroleum


detailed in the position’s job posting, utility operators must learn the “refining process” and “com-

plex refinery related material” so that they can handle many refinery-related tasks. Among other

duties, utility operators make periodic rounds of the “tank farms” to check for abnormal readings,

listen for odd noises, and monitor for gas leaks. Operators, for example, must ensure that the

machinery never surpasses Marathon’s “not-to-exceed” levels of pressure because those excessive

levels could create risks to the equipment or those around it. Operators also must sometimes adjust

equipment, including by opening and closing valves. And they must perform a “lockout/tagout”

process to isolate equipment that is being taken out of operation for maintenance.

       In June 2012 Marathon hired Turner as a utility operator. Upon hiring, he participated in

months of computer-based and hands-on training. In October, he started working at the refinery

for a 120-day probationary period. In a preliminary evaluation at the end of October, a reviewer

ranked his overall performance on the low end of “On Target.” The reviewer added that Turner

did not meet expectations for his use of proper terminology and opined that he must “work on

improving his understanding of process operations, including fluid dynamics, equipment and in-

strumentation functions, and terminology.”

       On December 26, Turner was in the unit of the refinery that turns “pure” gasoline into other

forms of gasoline (for those with refining knowledge, the parties call this the “low pressure con-

tinuous catalyst regenerator” area). This area, like others, has a risk of fire and explosion. Turner

was performing his usual morning checks when he received a call from the day foreman to come

to the “steam drum.” The foreman explained that they needed to take a sight glass on the drum

out of operation so that maintenance could service a sight-glass valve. (A “sight glass” shows the

level of liquid within a tank.) The foreman asked Turner to conduct the “lockout/tagout” process

for the sight glass and explained how to do so. Yet, after finishing a few other tasks, Turner felt



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No. 19-5778, Turner v. Marathon Petroleum


unsure about how to conduct the lockout/tagout process. He went to the control room to look it

up but was told that no written instructions existed and to “just be careful.” Confused about what

to do, he nevertheless opted not to ask for help. Instead of isolating the sight glass, Turner ended

up closing a much larger steam-drum valve, causing the equipment to surpass its “not-to-exceed”

level of pressure. A relief valve went off, which, Turner says, “scared the snot out of [him].” He

evacuated the area per Marathon protocol and was able to quickly reopen the valve with another

employee’s help. That reopening released the built-up pressure.

       Turner attended a meeting later in the day to discuss this incident with his supervisor and

human resources. Turner admitted the severity of his mistake. Closing the wrong valve had

“stopped the flow of steam from going through the process,” which could have shut down the unit

and potentially led to an explosion. According to his supervisor, Turner’s actions had brought the

unit to “the verge of an equipment failure.” According to human-resources personnel, “[t]his in-

cident demonstrated a gross misunderstanding of the refining process for his stage of training/em-

ployment and implicated serious safety concerns.” On January 3, 2013, after completing its re-

view, Marathon fired Turner while he was still a probationary employee.

       Four years later Turner sued Marathon in state court, alleging that it had fired him because

of his race in violation of Kentucky law. Marathon removed the suit to federal court on diversity

grounds. The district court granted summary judgment to Marathon. It held that Marathon pro-

vided a legitimate reason for Turner’s discharge (“his dangerous and reckless actions”), and that

Turner failed to show that Marathon’s safety reason was pretextual. We review that decision de

novo. Back v. Nestlé USA, Inc., 

, 575 (6th Cir. 2012).

       The Kentucky Civil Rights Act makes it “an unlawful practice for an employer . . . to dis-

charge any individual . . . because of the individual’s race[.]” Ky. Rev. Stat. § 344.040(1)(a). This



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No. 19-5778, Turner v. Marathon Petroleum


language is “virtually identical” to the text in Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a)(1). Jefferson County v. Zaring, 

, 586 (Ky. 2002). To decide whether

a court should grant judgment to the defendant in federal discrimination cases, the Supreme Court

has long used the familiar burden-shifting approach from McDonnell Douglas Corporation v.

Green, 

(1973). See Reeves v. Sanderson Plumbing Prods., Inc., 

, 141–

43 (2000). Under this approach, an employee bears the burden of making a prima facie case of

discrimination.

If the employee establishes this initial case, the burden of production

shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged action.

employer does so, the burden shifts back to the employee to prove intentional discrimi-

nation by showing that the employer’s articulated reason was not its true reason.

       But Turner’s claim is under Kentucky law, not Title VII. Should we apply this federal

burden-shifting approach to his state claim? That depends in part on whether the McDonnell

Douglas burden-shifting approach is procedural or substantive. Cf. Madej v. Maiden, 

, 373 (6th Cir. 2020); see generally Erie R.R. Co. v. Tompkins, 

(1938). If treated

as procedural (whether as a gloss on the Federal Rules of Civil Procedure or as a federal common-

law rule), McDonnell Douglas likely would apply to state discrimination claims even if a state

court used an alternative approach to resolve them. See Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 

, 398–99, 406–07 (2010). If treated as substantive (as a gloss on the

federal antidiscrimination statutes), McDonnell Douglas likely would not apply to state discrimi-

nation claims if a state court used an alternative. See Gasperini v. Ctr. for Humanities, Inc., 

, 426–31 (1996). Judges have disagreed over how to answer this difficult question. Com-

pare Snead v. Metro. Prop. & Cas. Ins. Co., 

, 1092 (9th Cir. 2001) (procedural),

with Bourbon v. Kmart Corp., 

, 474 (7th Cir. 2000) (Posner, J., concurring)



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No. 19-5778, Turner v. Marathon Petroleum


(substantive). We need not give an answer in this case. Kentucky courts have themselves long

used the McDonnell Douglas approach to resolve claims under the Kentucky Civil Rights Act.

Charalambakis v. Asbury Univ., 

, 576 (Ky. 2016); Bd. of Regents of N. Ky. Univ.

v. Weickgenannt, 

, 306 (Ky. 2016). So even if the federal burden-shifting approach

were substantive, it would still apply here as a matter of state law.

       Because Marathon has offered a legitimate, nondiscriminatory reason for Turner’s dis-

charge (his lack of care in closing the wrong valve and risking an explosion), we jump immediately

to the third burden-shifting step. To survive summary judgment at that stage, employees must

“produce sufficient evidence from which a jury could reasonably reject [their employer’s] expla-

nation of why it fired” them. Miles v. S. Cent. Human Res. Agency, 

, 888 (6th Cir.

2020) (quoting Chen v. Dow Chem. Co., 

, 400 (6th Cir. 2009)). Employees typically

try to establish this pretext “in one of three ways”: (1) by showing that the employer’s articulated

reason “had no basis in fact”; (2) by showing that the reason would have been “insufficient to

motivate the employer’s action”; or (3) by showing that the reason “did not actually motivate” that

action.

Turner cites all three methods in this case. But none of these meth-

ods create a genuine issue of material fact over whether Marathon’s safety reason for firing him

was mere pretext for racial discrimination.

       No basis in fact? Turner has not shown that Marathon’s decision to fire him lacked a basis

in fact. To do so, he must identify evidence from which a reasonable jury could conclude that “the

facts underlying [Marathon’s] allegations never occurred.”

Here, however, it is undis-

puted that those facts did occur. To his credit, Turner forthrightly acknowledged—both at the time

of the incident and in his deposition—that he mistakenly closed the wrong valve and caused the




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No. 19-5778, Turner v. Marathon Petroleum


refinery equipment to reach a not-to-exceed level of pressure. He also conceded that this conduct

created significant safety risks. So this method of proving pretext does him no good.

        Insufficient for discipline? Turner fares no better in suggesting that his actions did not

warrant discharge. Refining oil into gas is a dangerous business. So, among the misconduct that

is “serious enough to warrant discharge” immediately, Marathon’s work rules identify: “Job neg-

ligence, unsafe work practices, performing work in a careless nature, or violation of any of the life

critical rules.” Turner’s actions on December 26 fit that description. In Turner’s own words, the

manager who discharged him explained that “he didn’t want me hurting co-workers nor myself

because this industry is dangerous . . . he’d rather discharge me . . . than . . . have to tell my family

or my co-workers’ family that I’ve caused theirs or my own injury or death.” Not only that, Turner

was still a probationary employee at the time of this incident. Marathon thus could have fired him

immediately without the progressive discipline that applied to non-probationary employees under

the company’s collective-bargaining agreement.

        Not an actual motivation? Turner lastly cannot show that Marathon did not actually have

safety concerns in mind when deciding to let him go. He suggests that Marathon could not have

been motivated by these safety concerns because it did not fire three other white employees who

(he claims without personal knowledge) made comparable mistakes but were retained: Jordan

Daniel, Justin Turner, and Nick Warnock. Yes, a refusal to impose the same discipline on similarly

situated employees who commit “substantially identical conduct” can be evidence of pretext.

(citation omitted). But no, Turner did not show that these employees were similarly situated.

See

The employees had different supervisors, committed acts that were not as neg-

ligent as Turner’s, or did not put the safety of other employees in as much risk of harm. See id.;

see also, e.g., Hardesty v. Kroger Co., 758 F. App’x 490, 495 (6th Cir. 2019); Williams v. AT&T



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No. 19-5778, Turner v. Marathon Petroleum


Mobility Servs. LLC, 

, 398 (6th Cir. 2017); Jordan v. Kohl’s Dep’t Stores, Inc., 490

F. App’x 738, 744 (6th Cir. 2012).

       Take Jordan Daniel. He kept his job even though he performed a deficient lockout on a

pump. Yet Turner identifies no evidence that this mistake created the same not-to-exceed level of

pressure buildup, risk of an explosion, or comparable danger that his conduct had created. See

Hardesty, 758 F. App’x at 495. And a human-resource employee provided unrebutted testimony

that Daniel’s conduct was not as negligent as Turner’s: “Locking out a pump is a more complex

process than that of performing a lockout tagout of a sight glass.” Daniel also had different super-

visors and was not a probationary employee (so he was subject to the progressive-discipline rules).

See Jordan, 490 F. App’x at 744.

       Next consider Justin Turner. Justin Turner, according to Gary Turner, “left open a bleeder

valve that caused a vapor cloud to go through the plant,” halting operations for five minutes. Yet

Justin Turner also had different supervisors. See

human-resources employee again

explained that his mistake did not exhibit the same “gross misunderstanding of the refinery pro-

cess.” Nor does the evidence suggest that Justin Turner’s conduct had brought an area to “the

verge of an equipment failure” or some comparable danger in the way that Turner’s conduct had.

See Hardesty, 758 F. App’x at 495.

       Lastly turn to Nick Warnock. He did not properly close a drum, which caused a substance

to splash in his face. Unlike Turner’s actions, Warnock’s actions did not put the safety of fellow

employees at risk. See

failed to present sufficient evidence of pretext, no reasonable jury could

conclude that Marathon fired him because of his race rather than because of his conduct on




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No. 19-5778, Turner v. Marathon Petroleum


December 26. We thus affirm. Because Turner’s appeal was not frivolous, however, we deny

Marathon’s motion for attorney’s fees and costs. See Fed. R. App. P. 38.




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