Filed: Aug. 31, 2020
Latest Update: Aug. 31, 2020
Summary: RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0285p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FAISAL G. KHALAF, PH.D. + Plaintiff-Appellant/Cross-Appellee, ¦ ¦ > Nos. 19-1435/1468 v. ¦ ¦ ¦ FORD MOTOR COMPANY; BENNIE FOWLER; JAY ZHOU, ¦ Defendants-Appellees/Cross-Appellants. ¦ + Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-12604—Marianne O. Battani, District Judge. Argued: May 6, 2020 D
Summary: RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0285p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FAISAL G. KHALAF, PH.D. + Plaintiff-Appellant/Cross-Appellee, ¦ ¦ > Nos. 19-1435/1468 v. ¦ ¦ ¦ FORD MOTOR COMPANY; BENNIE FOWLER; JAY ZHOU, ¦ Defendants-Appellees/Cross-Appellants. ¦ + Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-12604—Marianne O. Battani, District Judge. Argued: May 6, 2020 De..
More
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0285p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FAISAL G. KHALAF, PH.D. ┐
Plaintiff-Appellant/Cross-Appellee, │
│
> Nos. 19-1435/1468
v. │
│
│
FORD MOTOR COMPANY; BENNIE FOWLER; JAY ZHOU, │
Defendants-Appellees/Cross-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:15-cv-12604—Marianne O. Battani, District Judge.
Argued: May 6, 2020
Decided and Filed: August 31, 2020
Before: GUY, THAPAR, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Sarah E. Harrington, GOLDSTEIN & RUSSELL, P.C., Bethesda, Maryland, for
Appellant/Cross-Appellee. Thomas G. Hungar, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: Sarah E. Harrington,
GOLDSTEIN & RUSSELL, P.C., Bethesda, Maryland, Carol A. Laughbaum, Raymond J.
Sterling, STERLING ATTORNEYS AT LAW, Bloomfield Hills, Michigan, for
Appellant/Cross-Appellee. Thomas G. Hungar, Jacob T. Spencer, GIBSON, DUNN &
CRUTCHER LLP, Washington, D.C., Elizabeth P. Hardy, Thomas J. Davis, KIENBAUM,
HARDY, VIVIANO, PELTON & FORREST, Birmingham, Michigan, for Appellees/Cross-
Appellants.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. This appeal involves claims of national origin
discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and Michigan’s Elliott-Larsen
Civil Rights Act (ELCRA), Mich. Comp. Laws 37.2101 et seq., and racial discrimination and
retaliation in violation of 42 U.S.C. § 1981. The claims were brought by Faisal G. Khalaf, Ph.D.,
who is of Lebanese descent, against Ford Motor Company, his former employer, and Bennie
Fowler and Jay Zhou, his former supervisors at Ford. Specifically, Dr. Khalaf contends that, he
was subjected to a hostile work environment because of his race or national origin, and that
defendants illegally retaliated against him, after he engaged in protected activities, by demoting
him, placing him on a “Performance Enhancement Plan” (PEP), and ultimately terminating his
employment.
The jury found that (1) Dr. Khalaf was neither demoted nor terminated by Ford because
of his race or national origin; (2) neither Ford as a corporate entity nor Zhou subjected him to a
hostile work environment, but Dr. Khalaf’s subordinates at Ford had done so (based on national
origin or race), and so had Fowler (based on national origin, but not race); and (3) Dr. Khalaf
was subjected to retaliatory demotion by Ford and Fowler, retaliatory placement on a PEP by
Zhou, and retaliatory termination by Ford alone, but was not subjected to retaliatory placement
on a PEP by Fowler or Ford or retaliatory termination by Fowler or Zhou.
For the collective actions of all defendants, the jury awarded Dr. Khalaf $1.7 million in
pension and retirement losses and $100,000 in emotional-distress damages. For the actions of
Ford only, the jury awarded Dr. Khalaf $15 million in punitive damages. The district court
granted Ford’s motion for remittitur of punitive damages but denied all of defendants’ other post-
verdict motions, including motions for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b). As to remittitur, the district court determined, in light of all of the evidence,
that the exemplary damages imposed on Ford were “so excessive as to shock the conscience”
and violated due process. Therefore, the court reduced the punitive damages award to $300,000.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 3
For the reasons outlined below, we hold that the district court erred in denying
defendants’ motions for judgment as a matter of law. Accordingly, we REVERSE and direct
the district court to enter judgment in favor of defendants. Based on this holding, we need not
address remittitur.
I. BACKGROUND
A. Dr. Khalaf’s Employment at Ford
In 1999, Ford hired Dr. Khalaf as a full-time non-management process engineer. R.134,
3.12. Tr., PageID 5655. During much of his career at Ford, Dr. Khalaf was a technical specialist
responsible for working on projects involving Six Sigma methodology.1 Id. at PageID 5655,
5678. In his early years in that capacity, Dr. Khalaf did not gain extensive experience managing
other employees. Nonetheless, in 2002, he attained “Leadership Level (LL)” 6, Ford’s lowest
managerial level.2 Three years later, in 2005, Dr. Khalaf moved up to an LL5 position. R.134,
3.13. Tr., PageID 5663-5664.
In 2006, Dr. Khalaf met the new Vice President of Global Quality at Ford, Bennie
Fowler. During the conversation, Dr. Khalaf shared information about his educational and
professional background. Dr. Khalaf also told Fowler that he had immigrated from Lebanon and
spoke Arabic. R.134, 3.13 Tr., PageID 5671-5672.
In 2007, Fowler reorganized the Global Quality Department and eliminated Dr. Khalaf’s
position. Id. at PageID 5673. According to Dr. Khalaf, he had been assured by another manager
that, even with his job gone, he would remain at the LL5 level, though it would require a new
reporting relationship. However, as Dr. Khalaf later learned, this was incorrect, as Fowler then
assigned him to an LL6 position.
Id. at 5673-5674.
Nonetheless, pursuant to Ford’s “in-grade
protection” policy, Dr. Khalaf was permitted to maintain the same salary and benefits of an LL5
while serving as an LL6.
Id. at PageID 5675; R.135, 3.14.Tr., PageID 5839-5840.
1Sigma is a set of statistical problem-solving tools that are used by companies, like Ford, to eliminate
manufacturing process defects with the goal of yielding cost savings.
2Each Ford management employee is assigned to one of six levels. The levels advance from LL6, which is
the lowest level of management, to LL1, which is the highest, held by those in the position of vice president and
above. R.134, 3.13. Tr., PageID 5656.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 4
In January 2008, Fowler approved a job transfer for Dr. Khalaf to Brazil. R.137,
3.19.Tr., PageID 6129. According to Fowler, this international role was a “high-rank
assignment[]” for Dr. Khalaf that “not everyone [at Ford] had the opportunity” to hold. R.134,
3.13.Tr., PageID 5683. The position was intended to last two years, with Dr. Khalaf supervising
four or five Ford employees. R.140, 3.22.Tr., PageID 6884. However, after just one year in his
new job, Dr. Khalaf was sent back to the United States by his supervisor, Ruebens Vaz—a
decision that, according to Ford, resulted from Dr. Khalaf’s “lack of management skills” and
adverse effect on “the morale of the team” he was supervising. Id. at 6885, 6890; see
id. at 6890
(supervisor explaining that Dr. Khalaf had “lost the team,” and therefore, the supervisor “had to
make the decision to . . . end the assignment”). Upon Dr. Khalaf’s return to the United States, he
immediately accused Vaz of discrimination and harassment based on race or national origin, and
mistreatment during one-on-one meetings. R.135, 3.14.Tr., PageID 5831-5833, 5835.
Fowler assigned Dr. Khalaf to a new job as a “Quality Functional Leader (QFL)” in
Ford’s Quality Strategy and Productive Placement Department (QS&PP Department), R.134,
3.14.Tr., PageID 5840; R.137, 3.19.Tr., PageID 6130, which is part of Ford’s Global Quality
Organization. In this group, Dr. Khalaf worked as an LL6 on cost-savings projects for Ford.
R.135, 3.14.Tr. PageID 5674-5675. According to Ford, Dr. Khalaf was deliberately placed as an
LL6 through the company’s “Individual Grade Protection” Program. Under this program, a
returning international-service employee retains the Leadership Level held during the foreign
assignment for a limited time as the employee seeks a job to restore the higher Leadership Level
that the employee held prior to the foreign assignment. Id. at PageID 5839–5840.
In June 2012, following the resignation of the QS&PP Department manager, Fowler
appointed Dr. Khalaf as an interim manager of this department. Shortly thereafter, the
appointment became permanent, R.136, 3.15.Tr., PageID 6009, 6014; R.135, 3.14.Tr., PageID
5706, 5710–5714, 5746; R.136, 3.15.Tr., PageID 6010–6012, and Dr. Khalaf again became an
LL5. R.135, 3.14.Tr., PageID 5746. In this new management role, Dr. Khalaf oversaw two
teams of Ford employees: (1) QFLs (Dr. Khalaf’s former job), who worked on cost-saving
projects; and (2) Quality Analysts, who were responsible for gathering data and preparing
detailed PowerPoint presentations for Ford’s weekly “Business Plan Review” (BPR) meetings.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 5
R.135, 3.14.Tr., PageID 5703, 5707. BPR meetings, as Ford explains, were essential strategy
sessions with Ford’s executive leadership team.3 The BPR presentations involved lengthy
reports (of approximately 500 pages) and critical quality data about Ford’s vehicles. R.138,
3.20.Tr., PageID 6466–6470. Given the importance of the meetings, Fowler testified, he always
“needed the information to be timely” and “free from errors.” R.137, 3.19.Tr., PageID 6121.
That standard was not met by Dr. Khalaf’s team, according to Fowler. Compounding the
problem, Fowler was disappointed with Dr. Khalaf’s leadership of his team at the time.
Particularly, while Fowler had expected Dr. Khalaf “to establish the relationships with the team”
and “spend time learning what the standards are, learning what the information is, and working
with the teams from the business office,” Dr. Khalaf seemed to struggle with this role. Indicative
of this, in June 2013, Kim Harris, one of the employees directly reporting to Dr. Khalaf, recorded
that as a result of Dr. Khalaf’s management style, the “[d]epartment is in [t]urmoil (extremely
high stress levels, some have had to seek counseling, many applying to get out of th[is]
department).” R.79-12, PX27, PageID 2487.
B. Dr. Khalaf’s Alleged Protected Conduct
Dr. Khalaf alleges three instances of protected conduct in support of his retaliation claims
against Jay Zhou, to whom Dr. Khalaf reported from August 2013 to June 2014.
The first involved a heated phone call between two employees in Dr. Khalaf’s
department, Pauline Burke and David Buche, in February 2013. This exchange reportedly
involved discussion of cost-saving measures. Buche allegedly told Burke to “be a big girl and
come up with the savings.” R.79-7, PX15, PageID 2459.
Upon learning of the phone exchange, Dr. Khalaf directed Burke to send a “claim” to
Human Resources (HR). R.79-8, PX16, PageID 2469.4 In her HR submission, Burke indicated
she had a “right to work in a non-hostile environment.” However, in neither Burke’s filing nor
3Theweekly meetings involved separate sessions with Fowler’s QS&PP Department and with
Ford’s CEO and his leadership team. R.136, 3.15.Tr., Page ID 6094-6104.
4Dr. Khalaf also notified HR that he had “asked Pauline to file a claim with HR because she made
accusation [sic] over a discussion she had with David Buche yesterday.” R.79-7, PX15, PageID 2459.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 6
subsequent email exchanges between Dr. Khalaf and HR did Burke or Dr. Khalaf ever
characterize the phone conversation as involving sexual discrimination or sexual harassment.
See id.; R.79-8, PX16, PageID 2468–2469.
The second instance of protected conduct referenced by Dr. Khalaf involved an email he
sent in June 2013 to Wendy Warnick, a Human Resources manager at Ford. See R.37-14, PX26,
PageID 1176-1180. Prior to sending the email, Dr. Khalaf had approached Fowler, alleging
hostile treatment by his subordinates. Fowler responded to Dr. Khalaf’s concerns by directing
Dr. Khalaf to ask that Warnick transition the hostile subordinates to a different part of the
company. R.135, 3.14.Tr., PageID 5744-5745. Adhering to Fowler’s instruction, Dr. Khalaf
sent an email to Warnick, in which he outlined the hostile treatment he had faced by his
subordinates, and explained that the subordinates’ direct supervisor, Kim Harris, had refused to
hold them accountable. Id. at PageID 5745; R. 37-14, Warnick Email, Page ID 1176-1179. Dr.
Khalaf characterized the collective actions of his subordinates as creating a hostile work
environment. R.37-14, PX25, PageID 1176-1179. According to Dr. Khalaf, HR’s response was
to do nothing. R.135, 3.14.Tr., PageID 5745. Frustrated with the inaction, Dr. Khalaf
approached Fowler again about his subordinates.
Id. at PageID 5745-5746. At that point,
Fowler responded that Ford would not relocate the hostile subordinates, and Dr. Khalaf would
just have to “deal with it.”
Id. at PageID 5746.
The final instance of protected conduct referenced by Dr. Khalaf involved his filing
another complaint to HR on April 4, 2014, approximately three weeks before he was placed on
the “performance-enhancement-plan” (PEP) by Zhou. Id. at PageID 5782, 5787-5787; R.140,
3.22.Tr., PageID 6840-6841. In the email, Dr. Khalaf specifically alleged that he was being
subjected to a hostile work environment by Zhou and Fowler, and that he was being retaliated
against for his protected activity. R.135, 3.14.Tr., PageID 5783; PX64, R.79-24, HR Email,
PageID 2536. Several days after Dr. Khalaf’s filing of the complaint, he met with HR officer
Les Harris. During this encounter, Dr. Khalaf offered further explanation of his April 4
complaint, stating that he was reporting discrimination and harassment based on his national
origin, which included Fowler’s abusive treatment of him in one-on-one meetings and Fowler’s
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 7
demands that Dr. Khalaf—and only Dr. Khalaf—fetch Fowler coffee in larger meeting settings.
R. 135, 3.14.Tr., PageID 5785-5786.
C. Fowler’s Re-Organization of the QS&PP Department
Fowler testified that even after several months as department manager, Dr. Khalaf in
2013 was still failing to prepare the BPR in a satisfactory manner. R.137, 3.19.Tr., PageID 6122.
Additionally, Dr. Khalaf continued to encounter difficulties in managing his team, as
documented by “Pulse” surveys,5 completed by Dr. Khalaf’s subordinates in August and
September 2013. R.138, 3.20.Tr., PageID 6388-6390; R.137, 3.19.Tr., PageID 6167; see also id.
at PageID 6252. One particular report indicated that Dr. Khalaf received a rating of “30” from
his subordinates based on their dissatisfaction with him as a supervisor. Ford characterized this
score as “shocking[ly] low.” In fact, it was the “lowest” score to ever be recorded in the QS&PP
Department. R.137, 3.19. Tr., PageID 6256, 6265.
According to Fowler, Dr. Khalaf’s sub-optimal scores, as well as “[a] lot of errors
in [Dr. Khalaf’s] presentation,” led Fowler to reorganize the QS&PP Department. R.136,
3.15.Tr., PageID 6029. The first change he made was to appoint Zhou as manager of the
department. Id.; R.135, 3.14.Tr., PageID 5755-5756; R.137, 3.19.Tr., PageID 6166. Fowler then
created a new LL5 position, “Lead QFL,” which he assigned to Dr. Khalaf. This position
relieved Dr. Khalaf of his prior responsibility to manage the Quality Analysts, though he would
still supervise the QFLs. R.135, 3.14.Tr., PageID 5756; R.136, 3.15.Tr., PageID 6029. As Lead
QFL, Dr. Khalaf retained the same pay and benefits as his prior position, but he now reported
directly to Zhou. R. 137, 3.14.Tr., PageID 6124-6125.
D. Dr. Khalaf’s Performance as Lead QFL
In a November 2013 performance assessment conducted by Zhou, Dr. Khalaf received an
“Achiever” rating, which, according to Zhou, is the “average rating . . . that most [Ford
employees] get.” R.137, 3.19.Tr., PageID 6261. However, Zhou informed Dr. Khalaf that he
5Ford used the annual “Pulse” surveys to solicit input from employees regarding their supervisors and
workplace. R. 138, 3.20. Tr., PageID 6388-6390; R. 137, 3.19. Tr., PageID 6167. According to the company,
“[t]he Pulse score is the most reliable process” at Ford “to get the feedback from the people in the organization.” Id.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 8
was “trending toward a lower achiever” rating.
Id. In his written evaluation, Zhou indicated that
Dr. Khalaf’s “leadership & supervisory skills need to be addressed.” R.82-5, DX26, PageID
2899. Underscoring this assessment, Zhou offered examples of what he believed were Dr.
Khalaf’s sub-optimal leadership characteristics, including his inabilities to (1) “own[] an issue”
versus decide it was “out of [his] control”; (2) “acknowledg[e] a concern & [] delegat[e] for
resolution”; and (3) “deal[] with difficult situations, communication skills, team motivation &
leadership engagement.”
Id. According to this written assessment, improvement would require
Dr. Khalaf to address his “PULSE [ratings], personnel relations issues, morale, relationships, &
decision making.”
Id. at PageID 2900. Finally, Zhou warned that “[i]f there [was] not sustained
improvement,” Dr. Khalaf would “be placed on a PEP.”
Id.
After providing this evaluation, Zhou made efforts to assist Dr. Khalaf with his
leadership skills. Zhou shared with Dr. Khalaf resources, available through Ford’s website, that
could aid employees with “leadership and development and communications skills
development.” R. 37, 3.19.Tr., PageID 6262. However, according to Zhou, when he met with
Dr. Khalaf in January 2014, Dr. Khalaf continued to deny his “responsibility on the items
highlight[ed] in the performance [review].” R.137, 3.19. Tr., PageID 6265.
E. Dr. Khalaf’s Initial Placement on a “Performance Enhancement Plan”
Dr. Khalaf’s management problems with his teams persisted into March 2014. During
that month, Dr. Khalaf’s direct supervisees met with Zhou to “complain[] about . . . the
leadership behaviors of Dr. Khalaf” and discuss “how people [were] mistreated” within the
group. R.137, 3.19.Tr., PageID 6214-6215. According to Zhou, one employee in particular
wanted “to change job[s]” because the stress of dealing with Dr. Khalaf was “affecting [that
employee’s] health.” R.138, 3.20.Tr., PageID 6394. Upon concluding that the “team was
destroyed by [Dr. Khalaf],” R.137, 3.19.Tr., PageID 6214, Zhou decided to place him on a PEP.
R.137, 3.19.Tr., PageID 6213. An HR representative, who was directly responsible for Dr.
Khalaf’s department, decided a 30-day PEP, as opposed to a 60-day PEP, would be most
appropriate, given that members of HR had “already coached [Dr. Khalaf] on [] issues [related to
his leadership performance].” R.82-5, DX132, PageID 2902. Nonetheless, as HR noted at the
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 9
time, if Dr. Khalaf did not improve during his initial 30-day PEP, this plan would be “extend[ed]
to a second 30[-]day PEP with [Career Transition Plan] language.” Id.
The first PEP was set to commence on April 4, 2014. On that day, Zhou scheduled a
meeting with Dr. Khalaf at which he planned to deliver news of the PEP. But, before the
meeting could take place, Dr. Khalaf canceled the appointment. He indicated to Zhou that he
would be “working from home” on April 4 instead. R.82-5, DX135, PageID 2909; R.137,
3.19.Tr., PageID 6273–6274.
On the afternoon of April 4, Dr. Khalaf then submitted an official complaint to HR, in
which he stated that he had been harassed by Fowler and Zhou. R.79-24, PX64, PageID 2536.
As discussed above, his act represented the third instance of “protected conduct” that Dr. Khalaf
referenced in support of his retaliation claim against Zhou. However, nowhere in Dr. Khalaf’s
complaint or within any other correspondence he sent to HR related to the alleged harassment,
did Dr. Khalaf ever state that Fowler had criticized his English. Id.; R.136, 3.15.Tr., PageID
5899.
On April 23, 2014, Zhou finally delivered the PEP to Dr. Khalaf. Shortly thereafter,
when Dr. Khalaf asked HR supervisor Mike Lank why he was being placed on a PEP, Lank
responded to him, “you had your chance when you filed your complaint.” R.135, 3.14.Tr.,
PageID 5789. During the months thereafter, Zhou met with Dr. Khalaf on a weekly basis in
order to review Dr. Khalaf’s progress and offer feedback. R.82-5, DX159, PageID 2944; R.137,
3.19.Tr., PageID 6281–6262, 6285–6293.
F. Dr. Khalaf’s Second PEP and His Disability Leave
Dr. Khalaf failed to complete the first PEP successfully and therefore was placed on a
second PEP. R.137, 3.19.Tr., PageID 6294. This PEP stated that if Dr. Khalaf did not
“demonstrate significant and sustained improvements,” his employment could be terminated.
DX164, App.4; Id., App.3. On June 27, 2014, the day the second PEP was scheduled to end, Dr.
Khalaf filed for a disability leave of absence, claiming he was “totally disabled from working.”
R.135, 3.14.Tr., PageID 5842–5843. According to Dr. Khalaf, his need for a leave of absence
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 10
stemmed from emotional strain he had experienced at work. He also indicated he had taken
antidepressants and anti-anxiety medication since March 2014.
Id. at PageID 5794, 5796.
Throughout this period, Dr. Khalaf had consulted with his family physician, as well as a
psychologist, Dr. Michael Katz. Id. at 5795-5796. The latter diagnosed Dr. Khalaf with post-
traumatic stress disorder (PTSD), based on Dr. Khalaf’s symptoms, which included difficulty
sleeping, nightmares, stress, muscle tension, extreme anxiety, and depression. R.137, 3.19 Tr.,
PageID 6317-6319, 6324-6330. Defendants dispute Dr. Katz’s PTSD diagnosis and claim that
he made it prematurely, after seeing Dr. Khalaf on only one occasion. Appellees’ Br. at 56-57.
Dr. Khalaf remained on medical leave from Ford for approximately one year. R.135,
3.14.Tr., PageID 5803. Based on the terms of Ford’s disability insurance policy, he was paid
100 percent of his salary for the first twelve weeks of his disability leave and 60 percent for the
remainder of the year. Id. at 5796-5797. In compliance with Ford’s requirements under the
policy, Dr. Khalaf’s physician and psychologist submitted paperwork at approximately one-
month intervals, which confirmed Dr. Khalaf’s need for a medical leave.
Id. at PageID 5797. It
eventually came to light, however, that Dr. Khalaf was teaching at a local college, Wayne State
University.
Id. at PageID 5801, 5843-5844.
With his disability benefits ending, Dr. Khalaf indicated that he would return to Ford in
July 2015.6 Id. at PageID 5804. Ford responded to Dr. Khalaf that his prior Lead QFL role had
been filled by another employee. R.139, 3.21.Tr., PageID 6559. Consistent with Ford’s leave
policy, the company placed Dr. Khalaf on a “no work available” status for a 30-day period.
Id.
at 6566. During this time, a search was conducted across the company for an open job
commensurate with Dr. Khalaf’s skills, experience, and LL5 designation. The search
particularly focused on opportunities within the Global Quality Organization, as well as
Manufacturing Operations and Powertrain Program Engineering and other groups, including the
Material Handling Organization, the Product Development Group, the Vehicle Operations
Manufacturing Engineering Group, and New Models departments. R.139, 3.21.Tr., PageID
6The parties dispute whether Dr. Khalaf’s disability benefits were terminated or had run out under the
terms of Ford’s disability plan.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 11
6565, 6568, 6583, 6582-6590. According to Ford, the search found no LL5 openings. Id. at
PageID 6586.
Dr. Khalaf disputes that there were no LL5 openings, claiming that his own investigation
of Ford Motor Company’s career website revealed “[m]any” jobs that were available and
possibly consistent with his qualifications. R.135, 3.14.Tr., PageID 5805. However, Dr. Khalaf
pointed to no specific job that was available. Id. at PageID 5805-5806. Regardless, however,
Dr. Khalaf did not dispute that Ford eventually located a Global Quality supervisor position
within Ford’s Quality Organization that reasonably matched Dr. Khalaf’s skills and experience.7
R.139, 3.21.Tr., PageID 6596. Though the position was at the LL6 level, it offered the same
salary as Dr. Khalaf’s pre-disability-leave LL5 job, while providing comparable benefits and the
potential for him to get another LL5 position in the future.
Id. The new assignment also would
accommodate Dr. Khalaf’s specific request that he not report directly to either Zhou or Fowler.
Id. at PageID 6606.
Dr. Khalaf rejected the job offer. R.135, 3.14.Tr., PageID 5806-5807, 5824–5825; R.80-
12, PX122, PageID 2587; R.80-14, PX132, PageID 2597. Consequently, on September 1, 2015,
Dr. Khalaf was officially separated from Ford under a designated program that would have
offered him a severance package. However, Dr. Khalaf rejected the severance package, given
that acceptance was contingent on his signing a release form. R.140, 3.22.Tr., PageID 6871. Dr.
Khalaf accepted a higher salary job at BASF, another Michigan-based-corporation. This new
position also offered Dr. Khalaf a signing bonus.
G. Procedural History
1. The Jury’s Findings
In July 2015, Dr. Khalaf sued Ford, Fowler, and Zhou. R.1., Complaint, PageID 2. He
amended the complaint in May 2017. R.45, Amended Complaint, PageID 1820. He alleged
violations of 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
7This position was located within Ford’s Global Quality Organization, the same group that Dr. Khalaf had
formerly worked in as a QS&PP manager.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 12
seq.; Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws, 37.201 et seq.;
and 42 U.S.C. § 1981. In March 2018, the case was tried before a jury, which returned the
following verdicts.
First, the jury concluded that Dr. Khalaf had been neither demoted nor terminated by
Ford on account of his race or national origin. Second, the jury determined that neither Ford as a
corporate entity nor Zhou had subjected Dr. Khalaf to a hostile work environment. However, the
jury did find that Dr. Khalaf’s subordinates had subjected him to a hostile work environment
based on national origin or race, and that Fowler had subjected him to a hostile work
environment based on national origin, but not race. Finally, the jury agreed with Dr. Khalaf’s
claims that he had been subjected to retaliatory demotion by Ford and Fowler, retaliatory
placement on a PEP by Zhou, and retaliatory termination by Ford. Nonetheless, the jury rejected
Dr. Khalaf’s contentions that he had been subjected to retaliatory placement on a PEP by Fowler
or Ford, and that he had been subjected to retaliatory termination by Fowler or Zhou. R.74, Jury
Verdict Form, PageID 2400-2401.
Based on these findings, the jury awarded Dr. Khalaf $1.7 million in pension and
retirement losses, $100,000 in emotional distress damages, and $15 million in punitive damages,
with the latter award to be imposed against Ford alone.
2. Post-Verdict Motions
After the jury returned the verdict, the district court indicated its initial inclination to
grant judgment as a matter of law (JMOL) in Ford’s favor on the Dr. Khalaf’s retaliatory
termination claim. R.143, 3.28.Tr., PageID 7237-7238. However, the court decided to delay
ruling definitively until it after it had evaluated defendants’ post-verdict motions in their entirety.
On July 23, 2018, the district court issued an opinion and order on the entry of judgment.
Here again, the court deferred its decision on whether to grant JMOL to Ford on the termination
claim, indicating it would do so eventually upon ruling on all of the post-judgment motions.
R.95, PageID 3952-3953. Immediately thereafter, the court entered judgment in Dr. Khalaf’s
favor, which reflected the compensatory and punitive damages awards, in addition to interest,
costs, and attorney’s fees, as allowable by law. R.99, Judgment, PageID 3964.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 13
On August 20, 2018, defendants filed the following motions: (1) for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(b); (2) for a new trial pursuant to Rule
59(a); (3) to alter or amend the judgment pursuant to Rule 59(e); and (4) for remittitur. R.102,
New Trial Motion, PageID 4084-4122.
On March 28, 2019, the district court granted defendants’ motion for remittitur and
reduced the punitive damages from $15 million to $300,000. However, the district court denied
defendants’ motions for JMOL, to alter or amend the judgment, or to grant a new trial. R.115,
Order, PageID 5111-5130.
Dr. Khalaf subsequently filed an appeal of the district court’s remittitur, while defendants
cross-appealed the district court’s denial of their motions for JMOL or a new trial.8
II. DISCUSSION
We focus our discussion on the motion for judgment as a matter of law because its
resolution is dispositive of this appeal. We review a district court’s denial of a JMOL motion de
novo. Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005). We consider “the
evidence in the light most favorable to the non-moving party.” Noble v. Brinker Int’l, Inc.,
391 F.3d 715, 720 (6th Cir. 2004) (internal quotations omitted). Judgment as a matter of law is
appropriate if “there is no genuine issue of material fact for the jury, and reasonable minds could
come to but one conclusion, in favor of the moving party.”
Id. (internal quotations omitted).
“When reviewing the facts of a discrimination claim after there has been a full trial on the
merits,” this court will consider the “evidentiary underpinnings of a plaintiff’s prima facie case”
to decide whether the “plaintiff has proven [his] case by a preponderance of the evidence.”
Barnes, 401 F.3d at 736 (original brackets omitted). This review “focus[es] on the ultimate
question of [the existence of] discrimination rather than on whether a plaintiff made out a prima
facie case.”
Id.
8Defendants did not appeal the district court’s denial of their motion to alter or amend the judgment.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 14
A. Alleged Hostile Work Environment
First, we consider the hostile-work-environment claims alleged against Ford (based on
the actions of Dr. Khalaf’s subordinates) and Fowler (Dr. Khalaf’s supervisor). The jury found
that (1) Dr. Khalaf’s subordinates had subjected him to a hostile work environment based on
national origin or race (thereby implicating Ford as a corporation); and (2) Fowler had subjected
Dr. Khalaf to a hostile work environment based on national origin, but not race. However, the
jury also found that neither Ford’s corporate conduct nor Zhou’s individual conduct had
subjected Dr. Khalaf to a hostile work environment.
For the reasons discussed below, we hold that the evidence is insufficient to support a
finding of defendants’ liability on Dr. Khalaf’s claims of hostile work environment. Therefore,
we REVERSE the district’s court’s denial of defendants’ motion for JMOL on these claims.
To allege a hostile work environment claim based on race or national origin under Title
VII or the ELCRA, a plaintiff must demonstrate that “(1) [he] belongs to a protected class;
(2) [he] was subject to unwelcome harassment; (3) the harassment was based on race [or national
origin]; (4) the harassment affected a term, condition, or privilege of employment; and (5) the
defendant knew or should have known about the harassment and failed to take action.” Phillips
v. UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017); see Boutros v. Canton Reg’l Transit Auth.,
997 F.2d 198, 203 (6th Cir. 1993) (applying analysis to national-origin based claim); see also
Phillips, 854 F.3d at 327 n.3 (“The elements are substantially the same for [the] ELCRA
claim.”); Quinto v. Cross & Peters Co.,
547 N.W.2d 314 (Mich.1996). When evaluating these
claims, this court “look[s] at the totality of the alleged [] harassment to determine whether it was
‘sufficiently severe or pervasive to alter the conditions of [a plaintiff’s] employment and create
an abusive working environment.’”
Phillips, 854 F.3d at 327 (quoting Williams v. CSX Transp.
Co.,
643 F.3d 502, 512 (6th Cir. 2011) (alteration in original) (quoting Harris v. Forklift Sys.,
Inc.,
510 U.S. 17, 21 (1993))). The circumstances we consider include “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.”
Phillips, 854 F.3d at 327 (quoting Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 116 (2002) (internal citation omitted)).
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 15
“[T]his court has established a relatively high bar for what amounts to actionable
discriminatory conduct under a hostile work environment theory.” Phillips, 854 F.3d at 328.
“[O]ccasional offensive utterances do not rise to the level required to create a hostile work
environment because, ‘[t]o hold otherwise would risk changing Title VII into a code of
workplace civility.’”
Id. at 327 (quoting Grace v. USCAR,
521 F.3d 655, 679 (6th Cir. 2008)).
For example, in the context of alleged racial discrimination, this court has determined that “even
offensive and bigoted conduct is insufficient to constitute a hostile work environment if it is
neither pervasive nor severe enough to satisfy the claim’s requirements.”
Id. at 328; see also
Clay v. United Parcel Service,
501 F.3d 695, 707–08 (6th Cir. 2007).
Ford disputes Dr. Khalaf’s surviving hostile-work environment claims against his
subordinates and Fowler. As to the charges against Dr. Khalaf’s subordinates, Ford argues that
he failed to present any evidence that their alleged harassment of him was “based on race [or
national origin],” Phillips, 854 F.3d at 327, and relatedly, that he failed to introduce proof
indicating the allegedly discriminatory harassment by his subordinates was sufficiently
“pervasive [or] severe enough.”
Williams, 643 F.3d at 506, 513; see also
Clay, 501 F.3d at 707–
08. As to Dr. Khalaf’s claim against Fowler, Ford argues that Fowler’s alleged criticism of Dr.
Khalaf’s English skills is insufficient evidence of national-origin discrimination. We address
this proof in more detail below.
1. Hostile Work Environment Allegedly Created by Dr. Khalaf’s
Subordinates
a. Absence of Harassment “Based on Race or National Origin”
In support of his claim of harassment by his subordinates, Dr. Khalaf described specific
instances of “disrespect” by employees Jim Miller, Les Javor, and Pauline Burke. R.135, 3.14.
Tr., PageID 5733. According to Dr. Khalaf, Miller hung “up the phone on [him] two or three
times,” and “when [Dr. Khalaf] would give [Miller] an assignment, [Miller] would say do it
yourself.” Id. at PageID 5733-5734. In addition, Dr. Khalaf described how Javor was “[v]ery
disrespectful” towards him, and “did not accept assignments from [him].”
Id. at PageID 5737.
Dr. Khalaf also testified that “Burke had an issue with [his] performance review comments made
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 16
to her” and “would not be happy with [him]” unless he changed them.
Id. at PageID 5762,
5783–5784; R.139, 3.21.Tr., PageID 6657–6660; R.140, 3.22.Tr., PageID 6728–6729; see also
Appellant’s Br. at 10-12.
Dr. Khalaf further referenced anonymous comments submitted by Ford employees in a
survey circulated by Ford at the end of 2012. In these responses, as Dr. Khalaf notes, several
individuals submitted “‘extremely disrespectful and hostile comments’ about [his] English-
language skills.” R.135, 3.14.Tr., PageID 5741-5743. However, Dr. Khalaf admits that these
comments were directed specifically to his “writing and understanding” of English, and did not
reference his speech or accent.9 Id.
Although, subjectively, these statements from subordinates could have been offensive to
Dr. Khalaf, none of these alleged incidents of disrespect10 demonstrates that his subordinates
made any comments because of Dr. Khalaf’s Lebanese origin or Middle Eastern ethnicity, as
required for him to prove a hostile work environment.
Title VII does “not prohibit all verbal or physical harassment in the work place; it is
directed only at ‘discriminat[ion] . . . because of’” protected characteristics under the statutes.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Mere disrespect or antipathy
will not be actionable under the statute unless a plaintiff can prove that such was motivated by
discriminatory animus. See
id. The “conduct of jerks, bullies, and persecutors is simply not
9In addition to the anonymous comments made by his subordinates in the 2012 survey, Dr. Khalaf
references on appeal one comment in particular made by a Ford employee, Rick Radners, that a “[c]ultural block . .
prevents [Dr. Khalaf] from being effective” and that Dr. Khalaf was “[r]aised differently.” Appellant’s. Resp. at 14
(quoting R.80-7, PX81, PageID 2575). However, this comment was made by Radners in April 2014, after Dr.
Khalaf had ceased managing the group of subordinates (the Quality Analysts), of which he complained during the
trial. See id.; DX70, App.1. Radners was a Quality Functional Lead, not a Quality Analyst, and Dr. Khalaf never
suggested during his testimony that Radners engaged in any disrespectful conduct, see R.139, 3.21.Tr., PageID
6517, 6660, nor does he even reference Radners by name in his appellate briefing. Therefore, we will not conduct
an analysis of Radners’s allegedly discriminatory comment towards Dr. Khalaf because the comment does not
represent evidence of discrimination that Dr. Khalaf claimed at trial supported his claim of harassment by his
subordinates.
10The evidence Dr. Khalaf presented regarding subordinates’ alleged harassment consists of largely his
own testimony. The only testimony he presented from others was that of Michelle Dietline, who stated that Dr.
Khalaf’s subordinates did “disrespect” him. However, here too, this evidence does not prove any presence of anti-
Arabic or anti-Lebanese bias attributable to Dr. Khalaf’s subordinates. See R.136, 3.15 Tr., PageID 5951-5954,
5983-5984, 5993.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 17
actionable under Title VII unless they are acting because of the victim’s [protected status].”
Wasek v. ArrowEnergy Servs., Inc., 682 F.3d 463, 467 (6th Cir. 2012).
When denying defendants’ JMOL motion, the district court did acknowledge that “the
bulk of the evidence presented demonstrated disrespect by [Dr. Khalaf’s] subordinates.” R.115,
JMOL Order, PageID 5120. Such disrespect, standing alone, is not enough to show unlawful
discrimination. But, the district court deemed significant one “anonymous comment left in a
drop box [by a Ford employee] that criticized [Dr. Khalaf’s] ‘writing and understanding
English.’” R.115, JMOL Order, PageID 5120. Although this comment made no explicit
mention of Dr. Khalaf’s English speaking abilities, the district court considered the comment to
be “relat[ed] to [Dr. Khalaf’s] accent.” Id.
As noted above, we have held that in certain circumstances, discrimination based on
accent “can be national origin discrimination.” Ang v. Proctor & Gamble Co.,
932 F.2d 540, 549
(6th Cir. 1991) (citing Berke v. Ohio Dep’t of Pub. Welfare,
628 F.2d 980, 981 (6th Cir. 1980)
(per curiam)). However, this is a fine line, and each factual scenario must be evaluated
contextually, considering that “[u]nlawful discrimination does not occur . . . when a Plaintiff’s
accent affects his ability to perform the job effectively.”
Id. (citation omitted). For example, in
Igwe v. Salvation Army, we concluded that there was no evidence of national-origin
discrimination towards the plaintiff-employee, given that a single comment by another company
employee regarding the plaintiff’s “broken speech” related to concern about the plaintiff’s
“communication skills,” as opposed to being motivated by discriminatory animus towards his
national origin. 790 F. App’x 28, 36 (6th Cir. 2019). Similarly here, the comments about
Dr. Khalaf’s English skills (which did not reference Dr. Khalaf’s accent) related to frustration
expressed by Dr. Khalaf’s subordinates about their manager’s ability to manage and
communicate clearly with them in preparation for the weekly BPR meetings—a critical activity
performed by the group. Because clear communication skills are a fundamental skillset required
of managerial positions across the United States, and such ability was a necessary part of Dr.
Khalaf’s specific role as QS&PP Department Manager, there is simply no basis, without more
evidence, to infer that the comments were motivated by discriminatory animus.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 18
Nor is there legal merit to Dr. Khalaf’s alternative argument for finding discrimination by
his subordinates, which he calls a “differential treatment” theory. He claims that his
subordinates treated him differently as compared to how they treated his “predecessor Mike
Hardy—who is white and American born.” Appellant’s Resp. 15. As foundation for this
argument, he references (1) his testimony that Les Javor had a “smooth relationship” with Hardy,
4.135, 3.14.Tr., PageID 5735; and (2) Michelle Dietlin’s testimony that Jim Miller “wasn’t
interested in doing work that wasn’t specifically requested by Mike Hardy.” R.136, 3.15.Tr.,
PageID 5953.
This court has held that a comparison between one member of a protected class and one
employee outside of that protected class is not “comparative evidence about how the alleged
harasser[s] treated members of both races in a mixed-race workplace.” Williams, 643 F.3d at 511
(emphasis added). Furthermore, none of the cases referenced by Dr. Khalaf supports the theory
that differential treatment of only two individuals, as compared to differential treatment of all
individuals in the relevant racial categories, demonstrates discriminatory animus under a
“differential treatment” theory. Finally, the two pieces of testimony about Javor and Miller do
not demonstrate that the subordinates refused assignments on account of Dr. Khalaf’s race or
national origin. In fact, this testimony leaves open a number of non-discriminatory rationales to
account for the feelings expressed by the employees, including potentially the fact that they
simply preferred Mike Hardy’s management style.
Therefore, we determine that Dr. Khalaf failed to introduce sufficient evidence to allow a
reasonable jury to find the requisite discriminatory animus from his subordinates based on race
or national origin.
b. Absence of Sufficiently “Pervasive” or “Severe” Discriminatory
Harassment
In addition to the absence of proof of discriminatory animus, there is another reason why
Dr. Khalaf lacks sufficient evidentiary support for his claim of hostile work environment created
by his subordinates. He did not introduce evidence that would allow a reasonable jury to find
that he was subjected to harassment that was widespread and significant enough to give rise to a
claim.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 19
“A hostile work environment occurs ‘[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’” Bowman
v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000) (citation omitted; alteration in
original); see also In re Rodriguez,
487 F.3d 1001, 1010-11 (6th Cir. 2007) (evidence of
discrimination based on accent that was sufficient to survive summary judgment on failure-to-
promote claim was insufficient to support hostile-work-environment claim).
Alleged harassment in the context of a hostile-work environment-claim must be
sufficiently “pervasive” or “severe” to alter the conditions of employment. Williams, 643 F.3d at
513. This standard sets a high bar for plaintiffs in order to distinguish meaningful instances of
discrimination from instances of simple disrespect. In this court’s determination of whether
conduct clears that bar, we consider various factors, including “‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’”
Id. at 512–13 (citing
Harris, 510 U.S. at 21). “Isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of [a
plaintiff’s] employment.’”
Id. (citing Faragher v. City of Boca Raton,
524 U.S. 775, 788
(1998)). “Occasional offensive utterances do not rise to the level required to create a hostile
work environment.” Grace v. USCAR,
521 F.3d 655, 679 (6th Cir. 2008). “To hold otherwise
would risk changing Title VII into a code of workplace civility, a result we have previously
rejected.”
Id. (citation omitted).
The alleged comments of Dr. Khalaf’s subordinates regarding his “writing and
understanding” of English, do not rise to the level of hostility based on national origin to trigger
Title VII or ELCRA liability. R.135, 3.14.Tr., PageID 5741-5743. The same can be said of the
several isolated comments submitted in one survey conducted by Ford in 2012. That these
survey comments are insufficient to establish a pattern of “pervasive” discrimination, is clear
when they are compared to far more problematic statements in other cases that have been
insufficient to establish Title VII liability. See, e.g.,
Williams, 643 F.3d at 513 (holding that
multiple “despicable” statements that were “certainly insensitive, ignorant, and bigoted” did not
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 20
constitute “severe or pervasive harassment given their isolated nature and their resemblance to a
‘more offensive utterance’”).
Therefore, we determine that Dr. Khalaf failed to introduce sufficient proof for a
reasonable jury to find the requisite “severe and pervasive” element for the hostile-work-
environment claim relating to his subordinates.
2. Hostile Work Environment Allegedly Created by Fowler
Although the jury rejected Dr. Khalaf’s claim against Fowler of a race-based hostile work
environment, it found that Fowler subjected Dr. Khalaf to a national-origin-based hostile work
environment. The national-origin claim is a closer call, but we ultimately conclude that Dr.
Khalaf presented insufficient evidence to show that Fowler subjected him to a hostile work
environment based on either race or national origin.
To support the national-origin claim, Dr. Khalaf states that Fowler was “disrespectful” to
him during one-on-one meetings. As QS&PP Department manager, Dr. Khalaf reported directly
to Fowler, and therefore was required to meet on a weekly basis with him. R.135, 3.14.Tr.,
PageID 7515. According to Dr. Khalaf, at these weekly sessions, “Fowler frequently exhibited
disrespectful behavior towards [him],” First Appellant Br. at 8, which included Fowler’s
“pound[ing] the table with his fist in a hostile manner, shouting demeaning things such as:
‘[W]hat’s wrong with you? Don’t you know English? Don’t you understand English? Do I have
to spell every time to you in English? Are you talking down to me? Are you whispering in my
ears?’” Id. (emphases added).
Dr. Khalaf testified that Fowler was “[v]ery hostile” during their one-on-one meetings.
Fowler stated that he was going to “crush” Dr. Khalaf “like an ant.”
Id. During “those hostile
moments,” Dr. Khalaf testified he “would pray that the earth would open and swallow” him.
First Appellant Br. at 8 (quoting R.135, 3.14.Tr., PageID 5717). On other occasions, Fowler
would call Dr. Khalaf up to his office, “only to order him to stop and leave as soon as he arrived
at the door.” First Appellant Br. at 9 (quoting R.135, 3.14.Tr., PageID 5717-5718). And, on
“[o]n still other occasions, when Dr. Khalaf brought documents to Fowler’s office, Fowler
‘bark[ed] commands’ to him like ‘a dog’ telling him not to come close, and to ‘drop what he
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 21
‘ha[d] and leave.’” First Appellant Br. at 9 (quoting R.135, 3.14.Tr., PageID 5718). Fowler’s
comments during these encounters made Dr. Khalaf feel “shocked, horrible, humiliated, [and]
devastated,” “week after week after week” for months. First Appellant Br. at 8 (citing R.135,
3.14.Tr., PageID 5717).
Dr. Khalaf alleged further abuse from Fowler at departmental meetings. On those
occasions, Dr. Khalaf’s role was to lead the meeting, by both “setting up the agenda” and
running the group “through reports from various regions.” First Appellant Br. at 10; see R.135,
3.14.Tr., PageID 5722–5723. However, as Dr. Khalaf explained, Fowler treated him “in a
demeaning and disrespectful manner,” in front of the entire group, including [] passing him notes
[and] demanding that Dr. Khalaf leave the meeting to obtain coffee for [him].” First Appellant
Br. at 10; see R.135, 3.14.Tr., PageID 5724-5725. Similar to his experience during the one-on-
one meetings, Dr. Khalaf found this treatment “to be humiliating,” and he believed “other
attendees had the same reaction to Fowler’s conduct.” First Appellant Br. at 10; see R.135,
3.14.Tr., PageID 5724–5728. This behavior continued “every week for months,” and Dr. Khalaf
contends it constituted national-origin discrimination because he “was the only person of Middle
Eastern descent in those meetings—and the only person Fowler asked to fetch him coffee.” First
Appellant Br. at 10; see R.135, 3.14.Tr., PageID 5726.
Dr. Khalaf was understandably upset by Fowler’s behavior. But, was there enough proof
for a reasonable jury to find a hostile work environment based on Dr. Khalaf’s national origin?
We conclude there was not, based on the applicable case law, as we explained below.
We turn first to whether the evidence of Fowler’s criticism of Dr. Khalaf’s English skills
is sufficient to support the jury’s finding of a hostile work environment. We understand that
“accent and national origin” are overlapping concepts, and in some circumstances can be
“inextricably intertwined.” Ang, 932 F.2d at 549. Or, in other words, “discrimination based on
manner of speaking can be national origin discrimination.”
Id.
For example, in Rodriguez, we held that a plaintiff had demonstrated a prima facie case
of national-origin discrimination sufficient to survive summary judgment on a failure-to-promote
claim. The plaintiff proffered evidence that the decision-maker in her company had made
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 22
“derogatory remarks about [her] accent and ethnicity and statements to the effect that [the
decision-maker] ‘would not allow her to become a supervisor . . . because of [her] Hispanic
speech pattern and
accent.’” 487 F.3d at 1006. Similarly, in Berke, we found sufficient evidence
for a plaintiff’s failure-to-promote claim, concluding that “plaintiff was denied two positions . . .
because of her accent which flowed from her national
origin.” 628 F.2d at 981.
However, both Rodriguez and Berke involved plaintiffs who offered evidence that they
were denied promotions on direct account of accent-based national origin discrimination by
corporate decision-makers. Our court recognizes the difference between discriminatory animus
motivating accent-based comments directed at an employee, as in Rodriquez and Berke, and
situations “when a [p]laintiff’s accent affects his ability to perform the job effectively,” when
criticism of English skills does not constitute unlawful discrimination. Ang, 932 F.2d at 549;
see also Igwe, 790 F. App’x at 36 (determining that in certain contexts where a job requires a
specific skillset, it is not unlawful to complain of an employee’s “communication skills––
whether related to his national origin or not”). Other circuits have also recognized the difference
between comments motivated by discriminatory intent and legitimate job-specific-related
critiques. See, e.g., Hannoon v. Fawn Eng’g Corp.,
324 F.3d 1041, 1048 (8th Cir. 2003); Bina v.
Providence Coll.,
39 F.3d 21, 26 (1st Cir. 1994) (“references to audience difficulty in
understanding [plaintiff] may reasonably be interpreted as expressing a concern about his ability
to communicate to students rather than discriminatory animus based on ethnicity or accent”);
Fragante v. City & Cty. of Honolulu,
888 F.2d 591, 596–97 (9th Cir. 1989) (“[t]here is nothing
improper about an employer making an honest assessment of the oral communications skills of a
candidate for a job when such skills are reasonably related to job performance”) (emphasis
omitted)).
Dr. Khalaf presents no evidence that Fowler’s statements included any criticism of
Dr. Khalaf’s accent. Dr. Khalaf also fails to provide any relevant context regarding the
referenced statements by Fowler that would allow a reasonable jury to find discriminatory
animus. There is no proof that could help a jury and this court assess what motivated the
comments. Undoubtedly, Dr. Khalaf’s role as QS&PP Department Manager required that he
communicate clearly with the team he managed, as well as with Fowler.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 23
And, while Dr. Khalaf was offended by Fowler’s comments, a plaintiff’s mere subjective
offense does not rise to the situations we deemed “discriminatory” in Rodriguez or Berke. The
plaintiffs in both those cases presented evidence that their accents were the source of their
superiors’ decisions to deny them job promotions. Based on those cases, Dr. Khalaf needed to
present proof to allow a reasonable inference that Fowler’s remarks about Dr. Khalaf’s English
were really about Dr. Khalaf’s accent. Then, Dr. Khalaf would have to offer evidence to allow a
reasonable inference that criticism of his accent was related or motivated by Fowler’s animus
towards Dr. Khalaf’s Lebanese national origin. This, Dr. Khalaf did not do.
Fowler’s derogatory statements, though abusive, were not enough to establish a hostile
work environment based on Fowler’s national origin. Rude, yes; discriminatory, no. Therefore,
we hold that there was insufficient evidence to conclude that Fowler’s criticism of Dr. Khalaf’s
English skills and other comments constituted national-origin discrimination.
B. Alleged Retaliation
Next, we consider the claims of alleged retaliation against Dr. Khalaf through his
demotion, placement on a PEP, and alleged termination. As noted, the jury found that
Dr. Khalaf had been subjected to retaliatory demotion by Ford and Fowler, retaliatory placement
on a PEP by Zhou, and retaliatory termination by Ford.
To demonstrate a prima facie case of retaliation under Title VII and the ELCRA, the
plaintiff bears the initial burden of establishing that “(1) he . . . engaged in protected activity,
(2) the employer knew of the exercise of the protected right, (3) an adverse employment action
was subsequently taken against the employee, and (4) there was a causal connection between the
protected activity and the adverse employment action.” Beard v. AAA of Mich., 593 F. App’x
447, 451 (6th Cir. 2014) (quoting Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.
2008)); see also Wade v. Knoxville Utils. Bd.,
259 F.3d 452, 464 (6th Cir. 2001) (retaliation
claims under Section 1981 governed by same standards as Title VII). “[W]hen it comes to
federal antidiscrimination laws like § 1981 . . . a plaintiff must demonstrate that, but for the
defendant’s unlawful conduct, [the] alleged injury would not have occurred.” Comcast Corp. v.
Nat'l Ass'n of African Am.-Owned Media,
140 S. Ct. 1009, 1014 (2020) (“This ancient and
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 24
simple ‘but for’ common law causation test, we have held, supplies the ‘default’ or ‘background’
rule against which Congress is normally presumed to have legislated when creating its own new
causes of action.”).
Furthermore, “the Supreme Court . . . made clear that the scope of Title VII's retaliation
provision is broader than that of Title VII’s discrimination provision.” Niswander, 529 F.3d at
720 (citing Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53 (2006)); see
also Civil Rights Act of 1964, §§ 703(a), 704(a), 42 U.S.C. §§ 2000e–2(a), 2000e–3(a).
“In contrast to Title VII’s discrimination provision, the ‘adverse employment action’ requirement
in the retaliation context is not limited to an employer's actions that affect the terms, conditions,
or status of employment, or those acts that occur in the workplace.”
Id. (citing Burlington
N., 548 U.S. at 62–66). “The retaliation provision instead protects employees from conduct that
would have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’”
Niswander, 529 F.3d at 720 (quoting Burlington
N., 548 U.S. at 60).
1. Alleged Retaliatory Demotion of Dr. Khalaf by Fowler
We first address whether there is sufficient evidence that would allow a reasonable jury
to find that Dr. Khalaf’s encouragement of Burke to file a HR complaint against Buche in
February 2013 qualified as a “protected activity” under Title VII and the ELCRA. Dr. Khalaf
claims that he instructed Pauline Burke, following her phone exchange with David Buche, to file
a claim with HR. R.79-8, PX16, PageID 2469 (“I have asked Pauline to file a claim with you
because she made accusation over a discussion she had with David []”). Dr. Khalaf contends
that Fowler “retaliated” against this “protected activity” in March 2013 by replacing him with
Jay Zhou (a higher-level LL3 employee) as Lead QFL responsible for overseeing the QS&PP
Department. As a result of Zhou’s appointment, Dr. Khalaf was relieved of his former
responsibility of managing the Quality Analysts. R. 79-11, PX24, PageID 2480; DX70, App.1.
For a plaintiff to demonstrate a qualifying “protected activity,” he must show that he took
an “overt stand against suspected illegal discriminatory action.” Blizzard v. Marion Tech. Coll.,
698 F.3d 275, 288 (6th Cir. 2012) (citations omitted). “In other words, an employee ‘may not
invoke the protections of the Act by making a vague charge of discrimination.’”
Id. (quoting
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 25
Fox v. Eagle Distrib. Co.,
510 F.3d 587, 591 (6th Cir.2007) (quoting Booker v. Brown &
Williamson Tobacco Co.,
879 F.2d 1304, 1313 (6th Cir.1989) (holding that complaints about
“ethnocism” were too vague to constitute protected activity))).
With this legal standard in mind, we find that Willoughby v. Allstate Insurance Co., offers
a comparable set of facts to what occurred here. In Willoughby, the plaintiff claimed he had
engaged in a “protected activity” when he sent a three-page letter to his employer following his
demotion, which “mention[ed] three previous sexual harassment complaints against” another
employee and discussed general unhappiness amongst white employees at his company. 104 F.
App’x 528, 530–31 (6th Cir. 2004). Although the plaintiff had mentioned “sexual harassment”
in his letter, which could be indicative of his taking a stand against such, we dismissed his
complaint because the letter was not actually “asserting discrimination,” but rather was intended
primarily to “impeach the other employee’s credibility” and “contest[] the correctness of a
decision made by his employer. . . .” Id. (concluding that the “vague charge of discrimination in
[[the employee’s] internal letter] is insufficient to constitute opposition to an unlawful
employment practice”) (quoting
Booker, 879 F.3d at 1313).
Dr. Khalaf’s report to Ford’s HR Department said even less about discrimination than did
the letter in Willoughby. Dr. Khalaf’s report did not even explicitly characterize Burke as having
been “sexually harassed.” Nor did Dr. Khalaf ever state that he had instructed Burke to file a
sexual harassment or sexual discrimination complaint. Rather, immediately after the incident
occurred, Dr. Khalaf indicated that he had “asked Pauline [Burke] to file a claim with [HR]
because she made an accusation over a discussion she had with David Buche yesterday.” R.79-
7, PX15, PageID 2458; R. 79-8, PX26, PageID 2469. Dr. Khalaf’s statements were not enough
for a reasonable juror to conclude that Dr. Khalaf charged “illegal discriminatory action,” as to
which he was taking a direct stand. Blizzard, 698 F.3d at 288.
There was insufficient evidence to show that Dr. Khalaf’s action in response to the
February 2013 telephone call was “protected activity” under Title VII or the ELCRA. We
therefore REVERSE the district court’s denial of JMOL on Dr. Khalaf’s retaliatory demotion
claim.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 26
2. Zhou’s Alleged Retaliatory Placement of Dr. Khalaf on a
Performance Enhancement Plan
The jury determined that Zhou, but not Ford or Fowler, retaliated against Dr. Khalaf by
placing him on a PEP. We conclude that this finding was not supported by the evidence based
on an evaluation of the undisputed timeline related to Dr. Khalaf’s employment, which indicates
no connection between Dr. Khalaf’s alleged protected activities and Zhou’s PEP decision.
Dr. Khalaf encouraged Burke to report the phone incident to HR in February 2013, and
he filed his harassment complaint against Fowler and Zhou on April 4, 2014. There is no
evidence that either of these acts had any impact on Zhou’s decision to place Dr. Khalaf on a
PEP. The latter decision was actually made in March 2014, based on documented evidence of
Dr. Khalaf’s sub-par job performance.
As Dr. Khalaf’s counsel conceded at trial, Zhou’s imposition of the PEP had nothing to
do with the Burke complaint because Zhou was not Dr. Khalaf’s supervisor at the time of the
complaint: “I’m not going to try to ask the jury to find liability against Zhou for the Pauline
Burke complaint; it was before his time.” R.141, 3.26.Tr., PageID 6998. Indeed, Zhou joined
the QS&PP Department in August 2013, six months after the Burke-Buche phone incident
occurred. See id; DX70, App. 1. Retaliation requires proof “that the individuals charged with
taking the adverse employment action knew of the [plaintiff’s] protected activity,” Mulhall v.
Ashcroft, 287 F.3d 543, 551–52 (6th Cir. 2002), and there is simply no evidence that Zhou even
was aware of Burke’s complaint to HR and Dr. Khalaf’s actions related to that complaint.
Dr. Khalaf contends that another relevant protected activity motivating Zhou’s decision
to place him on the PEP was the email he sent to HR manager Wendy Warnick in June 2013.11
See R.37-14, PX 26 PageID 1176-1180. Attempting to support the connection between the email
and his eventual placement on a PEP, Dr. Khalaf references the response made by HR supervisor
Mike Lank to Dr. Khalaf’s question for why he was being placed on a PEP, where Lank stated
“you had your chance when you filed your complaint.” R.135, 3.14.Tr., PageID 5789.
11Note that Dr. Khalaf did not reference the email to Warnick in connection with his retaliatory-PEP claim
in his response to defendants’ Rule 50(a) motion before the district court. See R.67, Plaintiff Rule 50(a) Opp.,
PageID 2361.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 27
According to Dr. Khalaf, this comment alone is sufficient evidence to support the jury’s
conclusion that Zhou’s imposition of the PEP represented retaliation for Dr. Khalaf’s protected
activity. However, we find no merit in this argument either.
The contents of Dr. Khalaf’s email to Warnick and the alleged connection Dr. Khalaf
attempts to draw between its transmission and Mike Lank’s statement appear tenuous and
unclear. As we noted above, in the context of protected conduct claims, employees “may not
make[] vague charge[s] of discrimination.” Blizzard 698 F.3d at 275 (quoting Fox,
510 F.3d 587
(quoting
Booker, 879 F.2d at 1313)). Therefore, it is questionable whether the email, in which
Dr. Khalaf described what he perceived as the sub-optimal behaviors of his subordinates,
constituted a protected activity in the first place, given that not once did Dr. Khalaf describe an
instance of actual discrimination directed towards him based on his race or national origin.
R.37-14, PX 26 PageID 1176-1180. Instead, Dr. Khalaf only described what he perceived to be
instances of subordinates’ disrespect, sub-par work quality, and defensiveness, none of which he
explicitly connected to being motivated by subordinates’ animus towards his race or national
origin. For example, Dr. Khalaf described one subordinate, “Kim,” as “[v]ery defensive when a
comment or question is raised to a person in [her] section.” R.37-14, PX 26 PageID 1179. He
described the performance of another subordinate, “Shari,” as “[a]lways requr[ing] direction,”
and characterized her leadership as “aggressive” and “show[ing] a lack of respect.”
Id.
Similarly, Dr. Khalaf explained that the leadership qualities of another subordinate, “Jim,”
included his “[h]aving tendency to get unpolite, nervous, and aggressive in his lack of respect to
others including his manager.”
Id.
However, even under the assumption that the email represented a valid protected activity,
Dr. Khalaf must show proof that Zhou, the decision-maker on the PEP, “knew of the protected
activity,” Mulhall v. Ashcroft,
287 F.3d 543, 551-512, which Dr. Khalaf fails to do. The dearth
of evidence showing Zhou had of knowledge of the email is further demonstrated by the facts
that (1) the email was addressed to Warnick alone; and (2) the email was delivered in June 2013,
two months before Zhou joined the Department. R.37-14, PX26, PageID 1176; see also DX 70,
App. 1. Finally, Dr. Khalaf fails to show the requisite causality between the June 2013 email and
his April 2014 placement on a PEP—an act that occurred ten months later. Lank’s comment,
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 28
without more, is irrelevant, as Dr. Khalaf has shown no connection between the comment and the
action of Zhou, the decision-maker here. Furthermore, for causation to be shown between an
alleged protected activity and the retaliatory action, “the temporal proximity must be ‘very
close.’”
Breeden, 532 U.S. at 273. That nexus is clearly not met here, given the ten-month span
separating the complaint and the PEP. For these reasons, there is no evidence from which a
reasonable jury could find a connection between Dr. Khalaf’s June 2013 email to Warnick and
the imposition of the PEP.
Finally, there is no evidence from which a reasonable jury could find a connection
between Dr. Khalaf’s complaint against Fowler and Zhou and the imposition of the PEP.
Consider the undisputed chronology of events that occurred relating to the PEP decision.
Although Dr. Khalaf notes that his official placement on a PEP (on April 23, 2014) occurred
after he filed the April 4, 2014 complaint with HR, there is no evidence in the record from which
a reasonable juror could have found that the PEP was caused by Dr. Khalaf’s complaint. The
basis for the PEP dated back to November 2013, when Zhou met with Dr. Khalaf about his
performance review. Zhou indicated that Dr. Khalaf was “trending towards a lower achiever &
he is expected to improve & sustain expected behaviors.” R.79-16, PX39, PageID 2506. At that
time, Zhou warned Dr. Khalaf that “[i]f there [was] not sustained improvement,” Dr. Khalaf
would “be placed on a PEP.” Id.; see also R.137. 3.19.Tr., PageID 6261-6262; R.135, 3.14.Tr.,
PageID 5773-5775. Following this review, Zhou testified, he tried to help Dr. Khalaf improve
the noted deficiencies in his job performance, particularly his leadership skills. Zhou even “went
through Ford[’s] website to try to find resource[s] . . . for the leadership and development and
communications skills development,” which he shared with Dr. Khalaf. R.137, 3.19.Tr., PageID
6262. However, Zhou testified that he met with Dr. Khalaf again in January 2014, and at this
meeting Dr. Khalaf “didn’t own [his leadership issues]” or “take responsibility on the items
highlight[ed] in the performance review.” R.137, 3.19.Tr., PageID 6265. Instead, according to
Zhou, Dr. Khalaf placed blame on his subordinates.
Meanwhile, despite this initial performance review and follow-up, the relationship
between Dr. Khalaf and his team of department employees failed to improve. Dr. Khalaf’s
management problems were the focus of a March 2014 meeting between department employees
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 29
and Zhou. It was a “very, very painful discussion,” Zhou testified, in which “everybody
complained about . . . the leadership behaviors of [Dr. Khalaf] and how people are mistreated.”
Based on these negative responses, Zhou concluded that the “team [had been] destroyed” by Dr.
Khalaf. That same month, Zhou made the decision to institute the PEP for Dr. Khalaf. R.137,
3.19.Tr., PageID 6214. In order to officially process the decision, Zhou had to work with HR
through late-March 2014, which required that he and HR representatives finalize the wording of
the PEP. Id. at PageID 6213. On April 2, 2014, HR then sent an email to Zhou approving the
final version of the PEP and instructing him that it was “Ok to move forward with delivery” of
the PEP on Friday, April 4. R.140, 3.22.Tr. PageID 6851; R.82-5, DX132, PageID 2902.
However, on the morning of April 4, 2014, Dr. Khalaf unexpectedly cancelled his scheduled
meeting with Zhou, meaning Zhou was unable to deliver the PEP that day. R.82-5, DX135,
PageID 2909. That afternoon Dr. Khalaf sent an email to HR complaining about the alleged
harassment by Fowler and Zhou. R.79-24, PX64, PageID 2536.
“To establish a causal connection between the protected activity and the adverse
employment action, a plaintiff must present evidence ‘sufficient to raise the inference that [his]
protected activity was the likely reason for the adverse action.’” In re Rodriguez, 487 F.3d 1001,
1011 (6th Cir. 2007) (quoting Walcott v. City of Cleveland, 123 F. App’x 171, 178 (6th Cir.
2005) (quoting EEOC v. Avery Dennison Corp.,
104 F.3d 858, 861 (6th Cir.1997))).
There was no proof presented at trial to allow for a reasonable inference that the PEP
resulted from Dr. Khalaf’s complaint about Fowler and Zhou. The district court acknowledged
the specific sequence of events outlined above, even recognizing that (1) Zhou did not become
Dr. Khalaf’s manager until months after Dr. Khalaf’s actions related to the Burke complaint in
February 2013; and (2) that “the PEP paperwork was processed before [Dr. Khalaf] made his
April 2014 harassment complaint” about Zhou and Fowler. R.115, JMOL Order, PageID 5122
(emphasis added). Nonetheless, the court denied judgment as a matter of law to Zhou,
rationalizing that “the evidence at trial demonstrated a continuous course of conduct aimed at
[Dr. Khalaf] following his protected activity.” Id. Respectfully, we believe the district court did
not adequately account for the lack of evidence that Zhou actually knew about Dr. Khalaf’s first
protected activity (encouraging Burke to report the February 2013 call sexual harassment
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 30
incident) or second protected activity (the June 2013 email) or that the PEP had anything to do
with the third protected activity (reporting alleged harassment under Fowler and Zhou to HR).
Ultimately then, because there was no evidence to support a continuous course of
retaliatory conduct aimed at Dr. Khalaf following any protected activity, there was no basis for a
reasonable jury to find the requisite causation for Dr. Khalaf’s retaliation claim. Therefore, we
REVERSE the district court’s denial of JMOL on Dr. Khalaf’s retaliatory PEP claim against
Zhou.
3. Dr. Khalaf’s Alleged Retaliatory Termination by Ford
Finally, Ford argues that it is entitled to JMOL on Dr. Khalaf’s retaliatory termination
claim. Ford advances two arguments: (1) that undisputed evidence shows that Dr. Khalaf was
not actually terminated; and (2) alternatively, that even if he had been terminated, Dr. Khalaf’s
undisputed refusal to take the job offered to him by Ford constituted a legitimate, non-retaliatory
reason for Dr. Khalaf’s termination. We agree with Ford’s first argument and do not address the
second.
Dr. Khalaf was on a medical leave of absence from June 28, 2014 through July 13, 2015.
R.135, 3.14.Tr., PageID 5824. Dr. Khalaf ended his leave of absence after his benefits under his
disability plan terminated. Ford then conducted a generalized search for open positions suitable
for Dr. Khalaf’s experience and skillset; however, Ford was unable to identify any available jobs
at Dr. Khalaf’s old management level (LL5) and made this clear to Dr. Khalaf.
Id. at
5824-5826;
R.80-14, PX132, PageID 2597. Dr. Khalaf even conducted a search himself and could not
identify any available managerial jobs at his former LL5 level, only finding non-management
LL6 positions. R.136, 3.15.Tr., PageID 5909-5911. Ford then offered Dr. Khalaf an LL6 job,
with an August 31, 2015 deadline for acceptance. Though this was a lower level position than
Dr. Khalaf previously held, Ford indicated that the job would be at the same rate of pay as Dr.
Khalaf’s prior LL5 job. R. 135, 3.14.Tr., PageID 5806-5807, 5824-5825; R.80-12, PX122,
PageID 2587; R.80-14, PX132, PageID 2597. But, on August 28, Dr. Khalaf rejected Ford’s job
offer and he accepted a position with another Michigan-based corporation, BASF. The new job
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 31
gave Dr. Khalaf a higher salary, as well as a signing bonus. R.135, 3.14.Tr., PageID 5818,
R.136, 3.15.Tr., PageID 5911-5915.
This evidence cited by Ford establishes that Dr. Khalaf cannot establish his retaliatory-
termination claim because Ford offered him the only available and reasonable job at the time,
which Dr. Khalaf refused in order to accept the BASF job offer. Therefore, Dr. Khalaf was not
terminated. See, e.g., Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) (“An ordinary wrongful
discharge claim . . . has two basic elements: discrimination and discharge.”) (emphasis added);
Evans v. Davie Truckers, Inc.,
769 F.2d 1012, 1014 (4th Cir. 1985) (concluding that the
“evidence clearly established that [the employee] voluntarily resigned his employment with the
defendant, [he] suffered no adverse employment action at the hand of the defendant”). “The sine
qua non of a discharge case is, of course, a discharge.” 1 B. Lindemann, et al., Employment
Discrimination Law 21–33 (5th ed. 2012).
The district court recognized this logic when it initially announced its intention to direct a
verdict in favor of Ford. R.143, 3.28.Tr., Page ID 7237-7238. However, a year later, the court
reversed its initial view on the question of Dr. Khalaf’s termination. R.115, JMOL Order,
PageID 5117. In denying Ford’s motion for JMOL, the court cited Dr. Khalaf’s perception that
the job offered by Ford (1) was not at the same grade as his pre-disability job, and therefore
could potentially affect Dr. Khalaf’s future bonuses; and (2) would alter Dr. Khalaf’s seniority
date, thus potentially affecting his pension benefits. Id. at PageID 5116. The court also cited
Dr. Khalaf’s statements of subjective belief (1) that he would have had to “self-demote to return
to work”; and (2) that, given HR Director Mike Link’s testimony “that Ford [had] offered [Dr.
Khalaf] money if he separated,” this offer represented an effective termination, because in the
ordinary course of business “Ford does not offer money to voluntary quits.”
Id. at PageID 5116.
The district court erred in its emphasis on evidence of Dr. Khalaf’s subjective belief
unsupported by objective facts. Any reduction in grade or benefits, or perception of “self-
demotion” related to a job, does not indicate that Dr. Khalaf was actually terminated. Dr.
Khalaf’s perceptions regarding his new role were merely assumptions based on his “review and
understanding of Ford policies.” R.135, 3.14. Tr., PageID 5811-5812. In fact, these assumptions
were incorrect, as established by the testimony of a Ford employee with knowledge about the
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 32
seniority date that would have been assigned to Dr. Khalaf. R.140, 3.22.Tr., PageID 6849-6850,
6873-6875. Therefore, there is no evidence to show that Dr. Khalaf would have lost his seniority
or would have lost his ability to participate in Ford’s defined-benefit plan. R.135, 3.14.Tr.,
PageID 5811-5812.
If anything, the factors Dr. Khalaf references as demonstrating actual discharge under
Ford would be more appropriate for a “constructive discharge” claim, Logan v. Denny’s Inc.,
259 F.3d 558, 569 (6th Cir. 2001).12 However, constructive discharge was never presented by
Dr. Khalaf as a theory for the jury to consider. The only question that the jury was asked to
decide relative to Dr. Khalaf’s alleged termination was whether he was actually terminated.
“An actual discharge . . . occurs when the employer uses language or engages in conduct
that would logically lead a prudent person to believe his tenure has been terminated.” Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir. 2008) (quoting Chertkova v. Connecticut
General Life Ins. Co.,
92 F.3d 81, 88 (2nd Cir. 1996)); see also Pennypower Shopping News, Inc.
v. NLRB,
726 F.2d 626, 629 (10th Cir. 1984) (“The test of whether an employee has been
discharged depends on the reasonable inferences that the employee could draw from the
statements or conduct of the employer.”). “An actual discharge does not occur, however, when
the employee chooses to resign rather than work under undesirable conditions.”
Id.
It is undisputed that, after engaging in a search of available positions, Ford offered Dr.
Khalaf a job that he refused. There is no evidence in the record suggesting that Ford used any
“language” or “conduct” that “would logically lead [Dr. Khalaf] to believe his tenure [had] been
terminated.”
Forestwood, 525 F.3d at 979. While Dr. Khalaf may have assumed the new job
offered to him by Ford represented a termination based on his personal “review and
understanding of Ford policies,” R.135, 3.14. Tr., PageID 5811-5812, as we noted above, these
12“To determine if there is a constructive discharge, both the employer’s intent and the employee’s
objective feelings must be examined.” Id. Our analysis of the first prong “depends on the facts of each case.”
Id.
“[W]e consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary;
(3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the
employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the
employee's former status.”
Id. Based on the evidence presented by Dr. Khalaf, it may be questioned whether he
would have been even able to demonstrate evidence of a constructive discharge, but we do not address that issue
because Dr. Khalaf did not raise it.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 33
assumptions were incorrect, as established by the testimony of a Ford employee who possessed
knowledge of the new seniority date assigned to Dr. Khalaf. Based on these facts, we hold that
no reasonable juror could have concluded that Dr. Khalaf was actually discharged based on
Ford’s actions. See Pennypower Shopping
News 726 F.2d at 629.
Dr. Khalaf’s reference to Lank’s testimony (where he stated that Ford does not generally
offer severance pay to employees who voluntarily quit, yet offered severance to Dr. Khalaf) does
not change our conclusion. R.140, 3.22.Tr., PageID 6869. This is because Lank qualified his
statement, explaining how the circumstances were different in Dr. Khalaf’s unique situation.
Namely, as was the case with Dr. Khalaf upon his return from disability leave, when a Ford
employee’s position “goes away” or is no longer available, and the only replacement position
“available” to that employee requires a reduction in level, then Ford’s personnel system classifies
the situation “as an involuntary separation,” which thereby qualifies that employee for severance
benefits.
Id. at
6871. This was the case with Dr. Khalaf because, after conducting its search,
Ford did not locate a position available at Dr. Khalaf’s prior LL5 management level—meaning
Dr. Khalaf would have necessarily been reduced to an LL6 position (though that position offered
the same salary and benefits). Therefore, under Ford’s internal classification nomenclature, Dr.
Khalaf’s rejection of the offer and departure represented “an involuntary separation,”
id. at
PageID 6871-6872, meaning Dr. Khalaf would be eligible for “some [severance] pay.”
Id.
Regardless of Ford’s internal classification, however, it is clear that Dr. Khalaf “was given a
choice to take the [Ford] position and he chose not to,”
id. at PageID 6870; instead, he chose to
separate from Ford in order to take a higher paying job at BASF.13
For these reasons, we conclude that there was insufficient evidence to allow a reasonable
jury to find that Dr. Khalaf was not actually terminated by Ford. Therefore, we REVERSE the
district court’s denial of JMOL on Dr. Khalaf’s retaliatory termination claim.
13Additional support for Lank’s description of Ford’s internal personnel classifications comes from the
“Salaried Involuntary Reduction Process Approval Form” signed by Fowler, Zhou, and other Ford representatives
on September 1, 2015 to document Dr. Khalaf’s departure. That form explains that Dr. Khalaf was offered an LL6
position, but “failed to accept the position by the specified deadline of 12:00 p m. on August 31, 2015,” and
therefore, Dr. Khalaf was “involuntarily separated from Ford Motor Company.” R.80-14, PX132, PageID 2597.
Nos. 19-1435/1468 Khalaf v. Ford Motor Co. Page 34
III. CONCLUSION
In sum, we hold that the district court erred in denying defendants’ motions for judgment
as a matter of law. Accordingly, we REVERSE the district court court’s judgment and remand
for entry of judgment in favor of defendants.
