Filed: Aug. 19, 2008
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0507n.06 Filed: August 19, 2008 No. 07-3009 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RAYMOND GIBSON, ) ) ON APPEAL FROM THE Plaintiff-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHIO ) SHELLY CO., ) ) OPINION Defendant-Appellee. ) _) Before: MOORE and MCKEAGUE, Circuit Judges; SCHWARZER,* District Judge. KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Raymond Gibson (“Gibson”) challenges
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0507n.06 Filed: August 19, 2008 No. 07-3009 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RAYMOND GIBSON, ) ) ON APPEAL FROM THE Plaintiff-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHIO ) SHELLY CO., ) ) OPINION Defendant-Appellee. ) _) Before: MOORE and MCKEAGUE, Circuit Judges; SCHWARZER,* District Judge. KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Raymond Gibson (“Gibson”) challenges t..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0507n.06
Filed: August 19, 2008
No. 07-3009
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RAYMOND GIBSON, )
)
ON APPEAL FROM THE
Plaintiff-Appellant, )
UNITED STATES DISTRICT
)
COURT FOR THE SOUTHERN
v. )
DISTRICT OF OHIO
)
SHELLY CO., )
)
OPINION
Defendant-Appellee. )
_______________________________________)
Before: MOORE and MCKEAGUE, Circuit Judges; SCHWARZER,* District Judge.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Raymond Gibson
(“Gibson”) challenges the district court’s grant of summary judgment for Defendant-Appellee Shelly
Co. (“Shelly”) on Gibson’s discrimination claims under 42 U.S.C. § 2000e-2 et seq. (“Title VII”),
42 U.S.C. § 1981, and Ohio Rev. Code § 4112.02 et seq. On appeal, Gibson asserts that the district
court erred in concluding that he failed to make out a prima facie case of either discrimination or
retaliation. We conclude that Gibson failed to establish that he was similarly situated to other
employees who were not terminated and, therefore, failed to make out a prima facie case of
discrimination. Similarly, we conclude that Gibson did not establish a causal link between his
termination and the filing of his Equal Employment Opportunity Commission (“EEOC”) and Ohio
*
The Honorable William W Schwarzer, United States District Judge for the Northern District
of California, sitting by designation.
Civil Rights Commission (“OCRC”) complaints; therefore, he has failed to make out a prima facie
case of retaliation. For those reasons, we AFFIRM the district court’s grant of summary judgment.
I. BACKGROUND
A. Factual Background
Usually, we take the version of the facts provided by the nonmoving party. See Boone v.
Spurgess, 385 F.3d 923, 925-26 (6th Cir. 2004). However, in this case, Gibson decided to rely
largely upon depositions that Shelly submitted to the district court in order to establish the underlying
facts of this case. Given that Gibson largely adopts Shelly’s version of the basic facts, we must do
so as well.
Shelly “has produced paving materials and paved roads and highways throughout Ohio.
Shelly’s Thornville Division consists of 24 modern asphalt plants and 17 sand, gravel, and limestone
facilities.” Joint Appendix (“J.A.”) at 33 (Br. in Supp. of Def.’s Mot. for Summ. J. at 1). In Ohio,
Shelly paves roads between May 1 and November 1, approximately. When the road-paving season
ends, “Shelly and the other paving companies generally lay off the work crew members, who then
collect unemployment benefits during the off-season.” J.A. at 55 (Aug. 24, 2006, Aff. of Rob
Sharrett ¶ 3).
“When Shelly starts a paving project, it assembles a construction crew by selecting a foreman
and then contacting the unions which provide the other types of employees . . . .” J.A. at 55 (Sharrett
Aff. ¶ 4). “[E]very time a new crew member reports for work, that crew member receives a copy of
the Manual of Safety Practices and Procedures (the “Safety Manual”) and is required to sign an
acknowledgment form for the Safety Manual. Shelly even follows this procedure with employees
who have worked for the Company during prior construction seasons.” J.A. at 55 (Sharrett Aff. ¶ 6).
2
Whenever there is a possible safety violation, “[t]he first step in a normal accident
investigation is to interview the person(s) involved.” J.A. at 129 (Safety Manual at 15). The Shelly
Safety Manual states that the “INVESTIGATION must be done as soon as possible,” in part because
“[p]eople are still available” close to the time of the incident. J.A. at 128 (Safety Manual at 14).
One person who is obviously important to the investigation is the employee involved in the incident;
the Safety Manual states that investigators should evaluate the emotional and physical disposition
of that employee. After the investigation has concluded, evaluation of the incident becomes the
responsibility of the Safety Committee:
The safety committee, after thorough investigation including a conference with the
violator, will classify the violation as ‘serious’ or ‘other than serious.’ A ‘serious’
violation is defined as one where there is a substantial probability that death or
serious physical harm could result from the violation and the employee knew or
should have known of the hazard. An ‘other than serious’ violation is one that is
related to job safety and health but probably would not cause death or serious
physical harm.
J.A. at 130 (Safety Manual at 16). The Safety Manual states that “[i]f an employee receives two
‘serious’ violations within one year, his/her employment will be terminated. Two ‘other than
serious’ safety violations will be equal to one ‘serious’ violation. Reemployment may be considered
one year after termination.” Id. The Safety Manual also leaves Shelly with the option of deviating
from those rules: “In keeping with the employer’s employment-at-will policy, an employee’s
supervisor after consultation with the appropriate general supervisor and the safety committee has
the discretion to discharge the employee after any safety violation.”
Id.
According to Rob Sharrett (“Sharrett”), General Manager of Shelly’s Thornville division, the
Safety Committee is the only body that can terminate an employee for a safety violation. Sharrett
3
also echoed the Safety Manual in noting that “any one serious [violation] can result in a termination,
if deemed appropriate.” J.A. at 290 (Sharrett Dep. at 81:23-25).
Gibson, a 41-year-old African-American male, is a member of the International Union of
Operating Engineers, Local 18. Prior to the events in question, Gibson had worked for Shelly for
five years, and according to Gibson’s testimony, every year he received a copy of the Safety Manual.
This case involves Gibson’s allegations of discrimination and retaliation in connection with
his three terminations from Shelly in 2003, 2004, and 2005. We proceed to address each of these
terminations in turn.
1. The 2003 Termination
In 2003, Gibson was called to work for Shelly as a roller operator. A roller operator controls
a large rolling machine that compresses newly laid asphalt. His supervisor at the construction site
was Scott Cooperrider (“Cooperrider”). According to Cooperrrider, on May 13, 2003, “[o]n three
separate occasions that day I observed Mr. Gibson drive the roller off of the surface where the new
asphalt was being laid and directly into the active traffic lane where vehicles were passing through
the work area. When this happened, the drivers passing through the work areas had to slam on their
brakes in order to avoid a potentially catastrophic collision between their vehicles and the much
larger Dual Drum Roller.” J.A. at 171 (Aug. 25, 2006, Aff. of Cooperrider ¶ 6).
Driving the roller into traffic was not Gibson’s only alleged infraction. According to
Cooperrider, “[t]he very next day, a female member of the work crew . . . approached me and
complained that Mr. Gibson had made sexually-oriented remarks to her and had engaged in other
behavior that made her feel uncomfortable, unsafe and unable to carry out her job duties.” J.A. at
4
171 (Cooperrider Aff. ¶ 7). Candace Gales (“Gales”), the Corporate Equal Employment Opportunity
Director at Shelly, was called in to investigate the sexual-harassment allegation:
On May 14, 2003, I received a report that a female employee (Deborah Freeze) had
complained that Ray Gibson had made sexually-oriented remarks to her and had
engaged in other behavior that made her feel uncomfortable, unsafe and unable to
carry out her job duties. I drove to the job site the same day and interviewed Ms.
Freeze. I was not able to talk to Mr. Gibson that day. I planned to speak with him
the following Monday. In the meantime, I turned over my preliminary findings to
Paul Rice, Shelly’s General Counsel.
J.A. at 159 (Aug. 24, 2006, Aff. of Candace Gales ¶ 3). Shelly fired Gibson on May 16, 2003, before
Gales completed her investigation. Although Gales worked to complete her investigation even after
Gibson’s termination, at no point did Gales interview Gibson about the alleged harassment.
The exact reasons for Gibson’s termination are unclear because Shelly employees gave
several contradictory explanations. In a letter, Gales stated that Gibson’s termination was not
connected to her investigation, noting that Gibson “was removed from the project for SAFETY
reasons.” J.A. at 162 (July 25, 2003, Gales Letter at 1) (formatting in original). Somewhat
contradictorily, however, Gales also wrote that the company attorney “stated that because of the
safety issue and the female complaints that Ray Gibson should be removed from the job until our
investigation was completed.” Id. (emphasis added). According to Cooperrider, “Shelly decided
that it was necessary to terminate Mr. Gibson due to his serious safety violations and his other
misconduct, so I called Mr. Gibson on May 16, 2003, to inform him of his termination.” J.A. at 171
(Cooperrider Aff. ¶ 8) (emphasis added). It is not clear whether the “other misconduct” was the
incompletely investigated sexual-harassment allegations. Further complicating the process of
investigation of the basis of the 2003 termination is that, according to Dennis Paul, Shelly’s
Corporate Safety Director, the Safety Committee never considered the decision to terminate Gibson.
5
After he was terminated, Gibson filed a union grievance that eventually went to arbitration.
Gibson also filed an OCRC complaint and an EEOC complaint. On February 19, 2004, the OCRC
denied Gibson’s complaint. On May 21, 2004, Gibson received a right-to-sue letter in response to
his EEOC complaint. Gibson, however, did not bring suit within 90 days of his receipt of the right-
to-sue letter.
2. The 2004 Termination
In June 2004, Gibson’s union assigned Gibson to a Shelly-run project. Gibson went to the
job site, but after two days, on June 30, 2004, Gibson was terminated. According to David Gentil,
foreman at the site, “I did not know that Shelly was still waiting on a decision from an arbitration
relating to an earlier termination of him. The next day, I spoke to my boss, who told me that Mr.
Gibson was not eligible to work for Shelly at that time due to the pending arbitration case.” J.A. at
181 (Aug. 25, 2006, Aff. of David Gentil ¶ 3). General Manager Sharrett explained further: “When
the 2004 construction season began in the Spring of 2004, Shelly was waiting on a decision from the
arbitrator in a case involving Mr. Gibson’s 2003 termination. As a result, Shelly considered Mr.
Gibson to be a terminated employee who was not eligible to operate equipment on its job sites at that
time.” J.A. at 55-56 (Sharrett ¶ Aff. 7). Similarly, in response to Gibson’s interrogatories, Shelly
stated that “Plaintiff was sent back to the union hiring hall based on the company’s understanding
that his separation from employment was to remain in effect unless and until the results of the March
2004 [arbitration] dictated otherwise.” J.A. at 437 (Def.’s Answer to Pl.’s First Interrogs. ¶ 17).
In response to the 2004 termination, Gibson filed another complaint with the OCRC, this
time alleging discrimination and retaliation. On April 14, 2005, the OCRC rejected Gibson’s
complaint, and the EEOC adopted the OCRC’s report.
6
3. The Arbitration Decision
On December 4, 2004, the arbitrator ruled on Gibson’s 2003 dismissal. The arbitrator
explained that “the [Safety] Committee decided to discharge the grievant for safety violations alone,”
J.A. at 198 (Arb. Dec. at 11), but noted that “the members of the Safety Committee were aware of
the [sexual-harassment] charge and considered its implications,” id. Later on in the decision, the
arbitrator also noted the tension between Shelly’s statements indicating that Gibson was terminated
in part for the sexual harassment and the fact that Gibson was terminated before Gales’s sexual-
harassment investigation concluded. Ultimately, the arbitrator determined that Gibson “was
terminated without just cause.” J.A. at 202 (Arb. Dec. at 15).
In reaching this conclusion, the arbitrator first considered the sexual-harassment allegations
and concluded that no just cause supported Gibson’s termination for his comments and actions. The
arbitrator then moved on to the safety violation and concluded that it was an isolated incident that
Shelly never officially labeled as “serious.” Thus, the arbitrator awarded Gibson reinstatement along
“with full back pay, benefits, and seniority to May 16, 2003.” J.A. at 214 (Arb. Dec. at 29).
4. The 2005 Termination
“When the construction season began in the Spring of 2005, Shelly recalled Mr. Gibson to
work on a paving crew and provided a check for his backpay.” J.A. at 56 (Sharrett Aff. ¶ 8). The
reunion, however, was short lived as Shelly subsequently terminated Gibson on May 12, 2005, for
what it termed “multiple safety violations.” Id.
During his short stint with Shelly for the 2005 season, Gibson was assigned to Richie
Boring’s (“Boring”) crew. Once again, Gibson was operating a roller. On May 10, because he was
unfamiliar with the controls for the particular roller he was operating, Gibson moved his roller too
7
close to the paver machine ahead of him. According to Boring, who was riding the paver, “[h]ad Mr.
Gibson come closer by just a few inches, I could have been killed.” J.A. at 216 (Aug. 24, 2006, Aff.
of Richie Boring ¶ 5). On May 11, at the same job site, Gibson went off the road while on his roller.
“[C]rew members observed Mr. Gibson drive the Dual Drum Roller off of the road several times,
one time driving almost completely into a ditch.” J.A. at 216 (Boring Aff. ¶ 6). Gibson did not
dispute that these incidents occurred. As Gibson testified at his deposition, “I looked down to—I
had gotten something out of my lunch bucket; and I looked down to close it because it was wedging
up against my leg. I looked down to close it. I closed it, and when I looked back up, I was—I could
feel the drum on the—on the edge of the asphalt. And I stopped. It slid down the bank, the width
of the front drum.” J.A. at 93-94 (May 11, 2006, Gibson Dep. at 133:23-134:5). Gibson admitted
that he thought that would have been a “serious safety offense.” J.A. at 95 (Gibson Dep. at 141:13-
22).
Shelly called upon Safety Representative Drake Prouty (“Prouty”) to investigate. Prouty
investigated the May 10 incident by talking to Boring and other witnesses. Prouty, however, never
mentioned speaking to Gibson. Prouty investigated the May 11 incident by visiting the site of the
accident and talking to several witnesses; again, there is no indication that Prouty spoke to Gibson.
Prouty then provided his report to the Safety Committee. Corporate Safety Director Dennis Paul said
that “[t]he Safety Committee evaluated all of the information and concluded that Mr. Gibson had
committed two separate serious safety violations on May 10 and May 11 and that his employment
should therefore be terminated for that reason in accordance with the provisions set forth in the
Safety Manual.” J.A. at 140 (Aug. 23, 2006, Aff. of Dennis Paul ¶ 4). At the end of the day on May
12, Boring told Gibson that Shelly had terminated his employment.
8
After his termination, Gibson filed another complaint with the OCRC. On February 2, 2006,
the OCRC rejected that complaint as well.
B. Procedural Background
On September 26, 2005, Gibson filed a complaint against Shelly in the United States District
Court for the Southern District of Ohio. Gibson’s complaint alleged race discrimination under Title
VII, 42 U.S.C. § 1981, and Ohio Rev. Code § 4112.02 et seq.1 On August 28, 2006, Shelly moved
for summary judgment.
In addressing Shelly’s motion, the district court did not give deference to the arbitrator’s
decision. The district court discounted the value of the arbitrator’s decision in part because, in
contrast to Gibson’s complaint, the arbitrator was not focused on race discrimination. J.A. at 472
(Op. and Order at 8) (“The arbitrator’s decision, including the arbitrator’s summary of the union’s
position, makes no mention of any issues concerning race discrimination as a factor in plaintiff’s
termination.”); J.A. at 485 (Op. and Order at 21).
Without any reliance upon the arbitrator’s decision, the district court proceeded to address
whether Gibson made out a prima facie case of discrimination. The district court concluded that
Gibson did not show that he was treated differently than non-minority similarly situated employees.
“Defendant has presented evidence that Caucasian employees have been terminated for safety
reasons,” J.A. at 479 (Op. and Order at 15); by contrast, Gibson presented to the district court safety-
violation forms that showed that some employees were not fired for their safety violations, but
Gibson could not show that the cited employees were non-minorities. In addition, the district court
1
Gibson’s complaint also alleged intentional and negligent infliction of emotional distress,
but Gibson does not challenge the district court’s grant of summary judgment on those claims in this
appeal.
9
found it significant that “[t]he safety violation forms do not show that these employees had the same
supervisor as plaintiff.” J.A. at 481 (Op. and Order at 17). Also, the district court believed that
Gibson’s violations were worse than those listed in the safety-violation forms because Gibson drove
into traffic multiple times, not just once. Thus, the district court concluded that Gibson could not
establish that he was treated differently than similarly situated employees.
In addition to its general conclusion about all of Gibson’s discrimination claims, the district
court also specifically addressed why Gibson could not make out a prima facie case of discrimination
with respect to his 2004 termination. According to the district court, the “plaintiff has produced no
evidence that previously terminated Caucasian workers with pending arbitrations were permitted to
return to work.” J.A. at 482 (Op. and Order at 18).
Although the district court believed that Gibson had not established a prima facie case, it also
noted that “defendant has articulated legitimate, nondiscriminatory reasons for the adverse job
actions.” Id. Furthermore, the district court did not find any problem with the fact that Shelly’s
actions were not entirely consistent with its Safety Manual, concluding that the “plaintiff’s
termination was not in violation of the Safety Manual” because the Safety Manual allows Shelly to
fire an employee for any safety violation. J.A. at 484 (Op. and Order at 20).
Lastly, the district court granted summary judgment to Shelly on Gibson’s retaliation claim,
concluding that the long period of time between Gibson’s complaint in 2003 and the 2004 and 2005
terminations made it difficult to establish a causal connection between the complaint and the
terminations.
Thus, the district court granted Shelly’s motion for summary judgment. Gibson filed a timely
appeal.
10
II. ANALYSIS
A. Standard of Review
“We review de novo a district court’s order granting summary judgment.” Wright v. Murray
Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). We affirm the district court’s grant of summary
judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” FED . R. CIV . P. 56(c). If the nonmovant presents evidence that, when viewed in
the light most favorable to the nonmoving party, raises a genuine issue of material fact, then
summary judgment is inappropriate.
Wright, 455 F.3d at 706.
When evaluating Title VII single-motive discrimination claims based on circumstantial
evidence, we apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
This framework first requires that the plaintiff establish a prima facie case. Once a
prima facie case has been shown, the plaintiff is entitled to a presumption that the
defendant discriminated against him or her in violation of Title VII. The defendant
then bears the burden of production to put forth a legitimate, nondiscriminatory
reason for the complained of adverse treatment. “The explanation provided must be
legally sufficient to justify a judgment for the defendant.” [Texas Dep’t of Cmty.
Affairs v.] Burdine, 450 U.S. [248,] 255 [(1981)]. If the defendant meets this burden,
the presumption of discrimination created by the prima facie case falls away, and the
plaintiff then needs to show that the defendant’s legitimate nondiscriminatory reason
was a pretext for discrimination. Throughout this burden-shifting approach, the
plaintiff continues to bear the ultimate burden of proving, by a preponderance of the
evidence, the intent to discriminate.
Wright, 455 F.3d at 706-07 (citations omitted) (internal quotation marks omitted); see also White v.
Baxter Healthcare Corp., ___ F.3d ___,
2008 WL 2607893, at *7-*10, *14 (6th Cir. 2008)
(describing the McDonnell Douglas framework but noting that it does not apply to mixed-motive
11
cases). “To demonstrate a prima facie case, the plaintiff must show that ‘(1) he or she was a member
of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified
for the position; and (4) he or she was replaced by someone outside the protected class or was treated
differently than similarly-situated, non-protected employees.’” Wright, 455 F.3d at 707 (quoting
DiCarlo v. Potter,
358 F.3d 408, 415 (6th Cir. 2004)).
Although Gibson has alleged violations of Title VII, § 1981, and Ohio Rev. Code § 4112.02
et seq., we consider all of these claims under the same burden-shifting approach and judicial standard
of review that we apply in Title VII cases. Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir.
2004), cert. denied,
546 U.S. 821 (2005).
B. The 2003 Termination
Gibson’s complaint and the district court opinion do not consider Gibson’s various
terminations separately, making it harder to determine Gibson’s exact allegations. At oral argument,
Gibson’s counsel asserted that the 2003 termination was included in Gibson’s complaint; we,
however, disagree. Gibson’s complaint requests only reinstatement “with back pay and all other
employment benefits and opportunities back to [J]une 30, 2004.” J.A. at 20 (Compl. ¶ 43(B)).
Because Gibson failed to bring a lawsuit within ninety days of receiving his right-to-sue letter for
his 2003 termination, he is barred from pursuing a Title VII discrimination claim in connection to
his 2003 termination. Wade v. Knoxville Utils. Bd., 259 F.3d 452, 460-61 (6th Cir. 2001); Clark v.
Nissan Motor Mfg. Corp. U.S.A., No. 97-5956,
1998 WL 786892, at *5 (6th Cir. Oct. 26, 1998)
(unpublished); Banks v. Rockwell Int’l N. Am. Aircraft Operations,
855 F.2d 324, 325-26 (6th Cir.
1988). Although any state and § 1981 claims involving his 2003 termination would not be barred
by the ninety-day limitation, his complaint does not cover his 2003 termination. By requesting
12
backpay starting the day he was fired in 2004, not 2003, it is clear that Gibson foregoes any claims
arising from his 2003 termination, not just his Title VII claim, which he is barred from pursuing.
Although Gibson does not seek compensation for his 2003 termination, he may still use the
2003 termination as evidence in support of his discrimination and retaliation claims. The Supreme
Court has previously held that discrimination that falls outside of the statutory period may
nonetheless be used as background evidence. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002) (holding that for discrete discrimination or retaliation claims, an employee is not barred
“from using the prior acts as background evidence in support of a timely claim.”). Thus, Gibson’s
2003 termination is still relevant for the case before us, even though it is not itself a basis for
recovery in Gibson’s complaint.
C. The 2004 Termination
Although it is clear to us that the 2003 termination is not a part of Gibson’s current
complaint, the status of the 2004 termination is less clear. Gibson’s complaint requests reinstatement
“with backpay and all other employment benefits and opportunities back to [J]une 30, 2004.” By
requesting backpay and reinstatement beginning from the moment he was fired on June 30, 2004,
it would appear that Gibson’s complaint seeks redress for the 2004 termination, a view espoused by
Gibson’s counsel at oral argument. However, the record before us is not clear as to whether the
arbitrator’s decision granting reinstatement “with full back pay, benefits, and seniority to May 16,
2003,” J.A. at 214 (Arb. Dec. at 29), includes the 2004 construction season. When asked at oral
argument, Gibson’s counsel thought the backpay award did not cover the 2004 season, but Gibson’s
counsel then deferred to Shelly’s counsel; Shelly’s counsel stated that Gibson was fully compensated
13
for the 2004 season.2 If the arbitrator’s order compensated Gibson for the 2003 termination and paid
him for the 2004 season, then Gibson would appear to be seeking double recovery. See Reed v.
Country Miss, Inc., Nos. 93-5594, 93-5649, 1995 WL 348031, at *3 (6th Cir. June 8, 1995)
(unpublished).
However, we need not address whether Gibson’s complaint as it relates to his 2004
termination might be barred by virtue of his having already received compensation for that
construction season. Even if Gibson could establish that he was entitled to additional damages for
the 2004 termination above and beyond what he already received, the district court properly
dismissed his 2004 termination claims because Gibson failed to make out a prima facie case for
discrimination relating to his 2004 termination. As stated earlier, “[t]o demonstrate a prima facie
case, the plaintiff must show that ‘(1) he or she was a member of a protected class; (2) he or she
suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or
she was replaced by someone outside the protected class or was treated differently than
similarly-situated, non-protected employees.’” Wright, 455 F.3d at 707. Gibson presented no
2
At oral argument, the following exchange with Gibson’s counsel occurred:
Q: “What did that backpay cover? What dates? Did it cover all of 2004?”
A: “I don’t believe so your honor.”
Q: “Why not? I’m sorry. So you do not believe . . . What dates do you believe the
backpay covered?”
A: “I know it covered ‘03 and it may cover until he could have gone back to work
. . . I’m not really sure. Opposing counsel, I’m sure, can clarify that. I know . . .
I want to say it was around a year, a year and a half of work.”
Shelly’s counsel stated in response: “The payments made pursuant to the arbitrator’s
agreement . . . it represents pay for the time from the 2003 discharge until the reinstatement which
took place when the construction season began in 2005. So he received his backpay and benefits for
the balance of the 2003 construction season and the entire 2004 season.”
14
evidence that established that Shelly treated him differently than any similarly situated, non-protected
employees.
The Safety Manual states that reemployment after termination for safety violations “may be
considered one year after termination.” J.A. at 130 (Safety Manual at 16) (emphasis added). The
Manual does not guarantee that an employee will be rehired after one year, and it certainly does not
address the status of an employee who is still disputing his termination through union grievance
procedures. At the summary judgment stage, Gibson adduced no evidence showing that Shelly
rehired employees whose claims were subject to ongoing arbitration hearings. Thus, Gibson has not
established that he was treated differently than similarly situated, non-protected employees.
D. The 2005 Termination
We conclude that the district court did not err in holding that Gibson failed to make out a
prima facie case with respect to his 2005 termination.
The question for the district court was whether Gibson presented evidence that Shelly did not
fire any non-protected employees who had committed two serious safety violations. The district
court correctly concluded that Gibson had not and thus concluded that he failed to establish a prima
facie case of discrimination. We agree.
At Gibson’s deposition, he presented scant evidence that he was treated differently than
similarly situated employees. The most that Gibson provided at his deposition was vague
information regarding two individuals who he thought had committed similar offenses and received
punishment less than termination. Gibson mentioned Kenny Schneider who “[t]urned over a Rosco
broom that was brand new. And I was told he was doing doughnuts in the parking lot.” J.A. at 96
(Gibson Dep. at 146:13-19). Gibson also mentioned an unidentified female whose roller went out
15
of control and rolled down a hill. Gibson, however, could offer no specifics as to that incident. Not
only were these anecdotes vague, but even if they were true, they did not involve employees who had
committed two serious safety violations.
In addition to the statements made at his deposition, Gibson’s memorandum opposing
Shelly’s motion for summary judgment included over 100 safety-violation forms, which documented
some limited facts regarding each safety violation and stated the resulting punishment. After
reviewing the safety-violation forms, we have identified fourteen incidents that are most similar to
Gibson’s incidents. We summarize them here:
1. Cooperrider received a written violation for an “other than serious” violation when one
of his supervisees operating a roller “accidentally rolled out to the edge of the road and
collided with a vehicle” inflicting “major damage” on the non-roller vehicle. J.A. at
313 (June 22, 2004).
2. Cliff Cordial was given three days off without pay for a “serious” violation after he
backed up a loader into the truck of another employee. J.A. at 314 (Oct. 25, 2002).
3. Dan Grace received three days off without pay for a “serious” violation when he flipped
over a truck while descending a ramp. He was unfamiliar with the location of the
engine retarder on the truck, and he was, therefore, unable to slow down the truck as it
sped up going down the ramp. J.A. at 333 (Feb. 23, 2006).
4. Eddie Graham received five days off without pay for the “serious” violation of
operating a loader near the edge of a 45 foot cliff. J.A. at 335 (Mar. 23, 2004).
5. Tony Likens received two days off work without pay for the “serious” violation of
backing up a loader into another truck. J.A. at 361 (Apr. 27, 2005).
6. Tom Maag received two days off work without pay for the “serious” violation of
backing his truck into a customer’s car. The form notes that it was not Maag’s first
incident, but the form doesn’t state the severity of any prior incidents. J.A. at 367 (Jun.
16, 2004).
7. John Shank received a written warning for an “other than serious” violation when he
hit a truck with a loader. J.A. at 399 (Apr. 19, 2004).
8. Almost a year later, Shank received a “serious” violation and five days off work without
pay for hitting yet another truck with his loader. J.A. at 400 (Apr. 21, 2005).
9. Shank was then suspended for two days without pay after an “other than serious”
violation for another accident a few months later. J.A. at 401 (Jun. 13, 2005).
10. Willie Shaw received two days off work without pay for the “serious” violation of
backing into a traffic lane while two tractor trailers were approaching him, and for
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knocking stones into other employees’ cars while operating his tractor. J.A. at 402
(Sept. 7, 2005).
11. Shaw was subsequently terminated after receiving another “serious” violation for
driving a roller into traffic. J.A. at 403 (Sept. 29, 2005).
12. Ken Snider received three days off work without pay for the “serious” violation of
losing control of his roller, sending it down into a ditch. J.A. at 408 (May 5, 2006).
13. Joe Ulm received one day off work without pay for the “serious” violation of damaging
a roller when he backed into another vehicle. J.A. at 418 (Jun. 19, 2004).
14. Gary Watson received one day off without pay for the “serious” violation of driving
over a berm pile and getting stuck. J.A. at 421 (Oct. 8, 2004).
What is apparent from this collection of similar incidents is that not one of Shelly’s
employees committed two serious safety violations and remained with Shelly. In fact, according to
the safety-violation forms, the only individual who committed two serious safety violations, Willie
Shaw, was terminated following the second violation.3 On May 10, 2005, Gibson moved his roller
within inches of the machine in front of him, risking the life of his supervisor. On May 11, 2005,
Gibson drove his roller off the road several times and admitted that that was a serious safety offense.
According to Shelly, the company terminated Gibson for these two serious safety violations. Gibson
has not provided evidence that anyone else committed two serious safety violations and was not
terminated.
The safety-violation reports cannot help Gibson because they provide no evidence that any
of the cited individuals–with the exception of Willie Shaw, who was terminated–were similarly
situated to Gibson. The basis for our holding today is that Gibson presented no evidence of different
treatment for other employees with two serious violations. The district court, however, offered
several alternative bases for its decision, including that Gibson presented no evidence that the
3
Willie Shaw’s September 7, 2005 violation included three seemingly separate incidents.
However, the Safety Committee treated the entire day’s events as one serious violation. In contrast,
Gibson’s May 10 and May 11 violations occurred over two separate days.
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employees listed in the safety-violation forms had the same supervisor as Gibson. That difference
in supervisors, however, does not make the employees dissimilarly situated.
In Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992), we held that to be similarly
situated “the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt
with the same supervisor, have been subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish their conduct
or the employer’s treatment of them for it.”
Id. at 583 (emphasis added). Shelly has latched onto
this language to argue that Gibson cannot establish that the cited workers are similarly situated
unless he can show that they had the same supervisor as Gibson. Despite Shelly’s assertions, we
have never held that an equivalence of supervisors was required to establish similarity.
Courts should not assume, however, that the specific factors discussed in Mitchell are
relevant factors in cases arising under different circumstances, but should make an
independent determination as to the relevancy of a particular aspect of the plaintiff’s
employment status and that of the non-protected employee. The plaintiff need not
demonstrate an exact correlation with the employee receiving more favorable
treatment in order for the two to be considered similarly-situated; rather, . . . the
plaintiff and the employee with whom the plaintiff seeks to compare himself or
herself must be similar in all of the relevant aspects.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (internal quotation
marks omitted).
In this case, “[c]ommon sense suggests that,” id. at 353, the identity of the individual
supervising Gisbon’s work is not a relevant aspect of his employment. At Shelly, termination
decisions were not made by Gibson’s direct supervisors; rather the decisions were made by the
Safety Committee. Even if a supervisor wished to terminate an employee outside of the usual
process, Shelly’s rules still required the supervisor to consult first with the Safety Committee. Thus,
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the Safety Committee processes every employee’s disciplinary decisions regardless of the identity
of the employee’s direct supervisor. The district court’s focus on the identity of Gibson’s supervisor
was erroneous. This, however, does not change the fact that Gibson has not identified a single
employee with two serious safety violations who was not fired.
Had Gibson established a prima facie case, Shelly would have been obligated to provide a
legitimate, nondiscriminatory reason for Gibson’s termination, and Gibson would have had the
opportunity to show that Shelly’s stated reason was simply a pretext. Gibson has provided many
reasons to be suspicious of Shelly’s stated reason. For instance, with the 2003 termination, Shelly
provided contradictory reasons for Gibson’s termination (the safety violation and the sexual
harassment claim by a co-worker), Shelly terminated Gibson before the sexual-harassment
investigation concluded, Shelly never interviewed Gibson about either the safety violation or the
sexual-harassment allegation, the Safety Committee did not meet to review Gibson’s termination,
Shelly did not follow its Safety Manual procedures, and Shelly fired Gibson for at most one serious
violation in 2003, not two. Considering that Shelly similarly failed to interview Gibson in
connection with the 2005 termination, Gibson has established a worrisome pattern of behavior on
the part of Shelly. Despite any concerns that these facts may raise regarding Shelly’s motives,
Gibson has failed to establish the prerequisite of a prima facie case. We, therefore, affirm the district
court’s grant of summary judgment on the 2005 termination claims.
E. Gibson’s Retaliation Claim
Lastly, we address Gibson’s retaliation claims. The district court assumed that Gibson raised
claims of retaliation; however, a review of Gibson’s complaint reveals that at no point did Gibson
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ever mention retaliation as a cause of action.4 Despite Gibson’s failure to raise explicitly retaliation
in his complaint, the district court did not err in considering retaliation claims as part of Gibson’s
lawsuit. As long as the facts of the complaint give adequate notice, we do not hold against the
plaintiff the failure to mention a specific legal theory giving rise to a claim. See Estate of George
ex rel. George v. Michigan, 63 F. App’x 208, 212 (6th Cir. 2003) (unpublished). In this case,
Gibson’s complaint noted that he had charged Shelly with retaliation in his OCRC and EEOC
complaints, even though he did not list explicitly retaliation as a cause of action in the complaint
filed in the district court. Furthermore, the facts that comprise the retaliation claims are present and
apparent within Gibson’s complaint. Thus, Gibson’s complaint gave adequate notice of his
retaliation claims, and it was not an error for the district court to conclude that Gibson alleged
retaliation claims in his complaint.
“[T]o prevail on a claim for retaliatory discharge under Title VII [based on circumstantial
evidence], a plaintiff must first establish a prima facie case by demonstrating that 1) the plaintiff
engaged in an activity protected by Title VII; 2) the exercise of the plaintiff’s civil rights was known
to the defendant; 3) the defendant thereafter undertook an employment action adverse to the plaintiff;
and 4) there was a causal connection between the protected activity and the adverse employment
4
On August 3, 2006, Gibson filed a motion requesting leave to file an amended complaint.
According to the motion, Gibson sought to add explicitly retaliation claims, which would state that
“[t]he acts of the Defendant, including but not limited to, the termination of Plaintiff’s employment
in 2004 and 2005, constitute retaliation against Plaintiff for exercising his legally protected rights
under both federal and state discrimination statutes.” Docket No. 2:05-cv-888, R. 16 at 5 (Pl.’s Mot.
for Leave to File Am. Compl.). Although the district court granted the motion for leave to file the
amended complaint, the amended complaint that was entered into the docket was identical to the
original complaint in all respects and did not include the retaliation language. We, therefore, address
Gibson’s retaliation claims without considering the explicit retaliation language that Gibson
attempted to add.
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action.” Virts v. Consol. Freightways Corp. of Del., 285 F.3d 508, 521 (6th Cir. 2002). “To
establish the causal connection required in the fourth prong, a plaintiff must produce sufficient
evidence from which an inference could be drawn that the adverse action would not have been taken
had the plaintiff not filed a discrimination action.” Nguyen v. City of Cleveland,
229 F.3d 559, 563
(6th Cir. 2000).
In evaluating the merits of Gibson’s retaliation claim, the district court concluded that Gibson
failed to prove a causal connection between his various OCRC and EEOC complaints, and his
terminations in 2004 and 2005. According to the district court, “the circumstances are insufficient
to support an inference of retaliation based on mere temporal proximity,” J.A. at 492 (Op. and Order
at 28), because there was such a long period of time between his protected claims and his
termination. We agree that Gibson failed to establish a causal connection between his OCRC and
EEOC complaints and his subsequent terminations.
We have never suggested that a lack of temporal proximity dooms a retaliation claim. In fact,
we have previously found retaliation when the termination followed the complaint by over a year.
Harrison v. Metro. Gov’t of Nashville, 80 F.3d 1107, 1119 (6th Cir. 1996), overruled on other
grounds by Jackson v. Quanex Corp.,
191 F.3d 647, 667 (6th Cir. 1999). However, in order to
overcome a lack of temporal proximity, the plaintiff must present sufficient evidence supporting the
causal connection. “[W]here some time elapses between when the employer learns of a protected
activity and the subsequent adverse employment action, the employee must couple temporal
proximity with other evidence of retaliatory conduct to establish causality.” Mickey v. Zeidler Tool
& Die Co.,
516 F.3d 516, 525 (6th Cir. 2008) (emphasis added). In this case, Gibson has not
21
presented any additional evidence of retaliatory conduct. Therefore, we affirm the district court’s
dismissal of Gibson’s retaliation claims.
III. CONCLUSION
For the foregoing reasons, we conclude that Gibson did not allege claims seeking recovery
for his 2003 termination, and we AFFIRM the district court’s grant of summary judgment as to
Gibson’s discrimination and retaliation claims regarding his 2004 and 2005 terminations.
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