Parries v. Makino, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0186n.06
Filed: December 21, 2004

NO. 03-4173

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

WILLIAM H. PARRIES, II, )
)
)
Plaintiff-Appellant, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
)
MAKINO, INC., )
)
)
Defendant-Appellee. )
______________________________________

BEFORE: DAUGHTREY and SUTTON, Circuit Judges, and FORESTER,*
District Judge.

MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, William Parries,

appeals from the district court’s order granting summary judgment to his former employer,

Makino, Inc., in an action Parries filed charging violation of Title VII of the 1964 Civil Rights

Act, 42 U.S.C. §§ 2000e et seq., and intentional infliction of emotional distress under Ohio

state law. Parries was initially terminated in November 1999 but was reinstated by order

of an arbitrator in August 2000. In June 2001, he was terminated a second time. In his

complaint, Parries alleged that both actions were based on race discrimination and that the

*
The Hon. Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
employer had illegally retaliated against him for filing a discrimination charge with the Ohio

Civil Rights Commission after his termination in 1999. The district court granted summary

judgment to Makino on all counts, finding that the plaintiff had not made out a prima facie

case of either discrimination or retaliation. On appeal, we conclude that because of an

insufficient ruling in connection with the discrimination claims and because the plaintiff has

made out a prima facie case of retaliation, the case must be remanded to the district court

for further proceedings as outlined below.

FACTUAL AND PROCEDURAL BACKGROUND

Parries began working for Makino, Inc., in 1990 and was employed there

continuously until his first termination in November 1999. He was one of very few African-

American employees among the union workforce at Makino. At the time of his 1999

termination, for example, three of the 150 union employees were African-American. Two

years later, when he was fired a second time, Parries was the only African-American in the

30-person1 union workforce. Parries believed that he had experienced disparate treatment

based on his minority status almost from the beginning of his employment at Makino and,

as a result, he filed his first complaint with the Ohio Civil Rights Commission in March 1990

and lodged several more in the following years. This case, however, deals only with events

leading to his terminations in 1999 and 2001, and the only protected activity alleged as a

basis for his retaliation claim is the charge he filed with the Ohio Commission following his

1999 termination.

1
The figure 30 appears in Parries’s affidavit, but it appears to be a typographical error. Otherwise,
the union work force at Makino went from 150 to 30 in a two-year period, a drop of 120 employees.

-2-
 The facts in the record establish that in early 1998, Makino promoted Parries to the

position of electrical technician, which placed him under the supervision of Don Hoerlein

and Jeff Reichert. In September 1998, a different supervisor observed Parries returning

late from lunch break. That supervisor, Sisson, gave Parries a verbal warning and placed

a note in Parries’s file. Makino used a system of “progressive discipline” under which an

employee goes though three steps of discipline levels before being subject to discharge.

However, the note that Sisson wrote did not count as a formal discipline step, and Parries

was not aware of its existence. In November 1998, Reichert did place Parries on the first

level of discipline after observing him returning late from lunch. Parries said that he had

been talking with two other employees about a company meeting he attended earlier in the

day. In March 1999, Parries was placed on the second step of discipline when he returned

late from break time. Parries’s explanation was that he was a candidate for a union

leadership position and had been discussing contract issues with a fellow union member.

A few days later, Parries missed work without informing his supervisor in advance.

Under Makino’s point-based attendance policy, an employee earned credit points for good

attendance and penalty points for any absences. Credits could be applied against

absences, but only if the employee called in within the first two hours of an absence.

Parries’s absence placed him over the ten-point limit and thus subjected him to discipline.

Because Parries had forgotten to call in the morning of his absence, Hoerlein refused

Parries’s post hoc request to apply his credit points. Hoerlein placed Parries on the third

disciplinary level for this infraction.

In October 1999, Parries was recorded as having committed three disciplinary

infractions that were not individually punished but that led up to a “last chance agreement.”

-3-
Specifically, on October 12, a supervisor observed Parries clocking into work and then

returning to his car, parking, and re-entering the facility. The supervisor reported the

incident to Reichert, who gave Parries a verbal warning. Two days later, on October 14,

Parries returned five minutes late from break after spending the time discussing safety

issues with other union members. The next day, on October 15, Parries remained away

from his workstation for longer than permitted for a discussion with the union president,

who was a fellow employee. In response to these three incidents, Makino management

met with Parries and issued the “last chance agreement.” The agreement was in lieu, they

said, of the usual fourth step of discipline, which was permanent termination. The

agreement provided that “[a]ny violation of this ‘Last Chance Agreement’ will result in

disciplinary action, up to and including termination.” Parries declined to sign the document.

Invoking the terms of the “last chance agreement,” Makino terminated Parries a

month later, in November 1999. Earlier that month, Parries had lost his employee badge

and could not clock in and out of work in the usual fashion. Parries called his supervisor

on the phone to check in verbally for the first two days, but there is a dispute as to whether

he did so for the following three days. Although Parries maintains that he saw Reichert on

the floor and asked him to check him in, Reichert had no record of this. Reichert concluded

that Parries had violated the “last chance agreement” and contacted the manager of labor

relations at Makino, who decided to discharge Parries. In response, Parries filed a claim

of race discrimination and retaliation with the Ohio Civil Rights Commission, which found

that “probable cause d[id] exist” to credit Parries’s allegations of discrimination.

Parries also challenged his termination in arbitration, and he won. The arbitrator

concluded that Parries had not violated the “last chance agreement” and ordered

-4-
reinstatement with back pay, which occurred on August 8, 2000. His new position was as

a unit assembler under the supervision of Hoerlein. Once again, Parries immediately

began to have run-ins with his supervisors. Twice in August, Hoerlein spoke to Parries

about making “loud noises” while at his work station. In November 2000, Hoerlein gave

Parries a five-day suspension after finding him away from his work-station without

permission. Makino later rescinded the suspension and instead gave Parries a “final

warning.” In response to this incident, Parries filed a retaliation claim with the Ohio Civil

Rights Commission. In December 2000, Parries again faced discipline, this time for

attempting to tape-record a meeting between the union and Makino management.

Although Parries claimed that the anti-recording policy was never made explicit, the

company insisted that he had been told in a previous meeting that he was not allowed to

make such tape-recordings. In January 2001, Parries received a “final warning” from

supervisor Morris after improperly recording his hours. On February 1, 2001, Parries had

a verbal dispute with Morris and alleged that Morris “stepped toward him in a threatening

way with his fists raised.” Parries then filed yet another complaint with the Ohio Civil

Rights Commission. In March, Morris gave Parries two verbal and one written warning for

his poor work performance.

The situation came to a head in June 2001 when Parries entered into an argument

with Morris and Hoerlein about whether Hoerlein had informed the employees that overtime

was voluntary or mandatory. In the course of the argument, Parries called Hoerlein a liar

and told him to “get some balls.” Makino then terminated Parries’s employment.

DISCUSSION

A. The Discrimination Claims

-5-
 “[A] plaintiff may establish a prima facie case of discrimination either by presenting

direct evidence of intentional discrimination by the defendant or by showing the existence

of facts which create an inference of discrimination.” Talley v. Bravo Pitino Rest., 61 F.3d

1241, 1248 (6th Cir. 1995) (citations omitted). Although Parries attempted, unsuccessfully,

to produce direct evidence of discrimination in regard to the defendant’s actions,2 the bulk

of the evidence in this case was aimed at “creat[ing] an inference of discrimination.” To

show an inference of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1972), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),

mandate a showing that the plaintiff (1) was a member of a protected class; (2) was

discharged; (3) was qualified for the position; and (4) was replaced by a person outside

the class. There is no dispute in this case that Parries has established the first three

McDonnell Douglas factors for both his 1999 and 2001 terminations. The district court

found, however, that Parries had not established that he had been replaced by a non-

minority worker in both instances and had therefore failed to make out a circumstantial

case of discrimination.

Following Parries’s dismissal in 1999, Makino filled his position with outside

contractors. The record contains no information about their ethnicity or race because

Parries failed to produce any such evidence. Hence, Parries has not shown he was

replaced with a non-minority person, the fourth McDonnell Douglas element. Makino

maintains that Parries was not replaced at all, but rather that his position was eliminated.

2
See Section B, below.

-6-
 Nevertheless, instead of showing the fourth McDonnell Douglas element, a plaintiff

may make out a prima facie case by showing “that a comparable non-protected person was

treated better.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). To

establish disparate treatment, the plaintiff must show that he was similarly-situated in all

relevant aspects to the comparable worker. See Pierce v. Commonwealth Life Ins. Co.,

40 F.3d 796, 802 (6th Cir. 1994). In a discriminatory discipline or firing context, “similarly-

situated” means that “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.” Mitchell, 964 F.2d at 583. Although the comparison need not involve identical

misconduct, the misconduct must be of comparable seriousness. See Hollins v. Atl. Co.,

Inc., 188 F.3d 652, 659 (6th Cir. 1999).

Parries passed through four stages of disciplinary action prior to his 1999

termination. He argues that a showing of disparate treatment in even one of the stages

invalidates his final termination because the termination was built upon the successive

disciplinary measures. However, in reviewing the individual disciplinary actions and the

evidence of comparables produced, we cannot say that any one of the employer’s actions

meets the Mitchell similarly-situated standard. Viewed as a whole, the record of discipline

suggests that Parries, as one of the very few African-American employees, was subjected

to more intense scrutiny by his employers than were other, non-minority workers, but the

same evidence does not establish legally disparate treatment.

-7-
 For example, the record shows that Parries was placed on the first level of discipline

on November 17, 1998, for returning half-an-hour late from his lunch break. Parries

argues that he was 15 minutes late because he started his lunch break late due to a

company meeting that ran long. Then, on his way back from lunch, two other employees

questioned him about the contents of the meeting. When Parries was returning to his work

station, supervisor Reichert confronted him about being late. Parries was written up, but

the two white employees with whom he had been conversing received no discipline.

However, Parries did not show that he was similarly-situated to his two co-workers; he

presented no evidence that Reichert was a supervisor of the two white men, that they were

not on an approved break, that Reichert saw the other men away from their work stations,

or even that they actually were away from their work stations while talking to Parries.

The second disciplinary action occurred on March 15, 1999, when Parries was

written up for returning late from lunch after discussing union issues with co-workers as part

of his campaign for a union leadership position. Parries claims that it was common practice

for union candidates to take a few minutes of work time to explain issues to their co-

workers. Parries submitted declarations from two co-workers alleging that they had each

engaged in campaigning on company time and had not been punished for it. Again,

however, Parries did not show that he was similarly-situated to those two co-workers

because there was no indication of who the workers’ supervisors were, whether the

supervisors were aware of the practice, when the co-workers’ campaigning occurred, or

whether it was done in a similar manner. To make out a case of disparate treatment, the

plaintiff must produce specific facts showing he and the non-minority employee engaged

-8-
in similar conduct. See Hardy v. Eastman Chem. Co., Docket No. 01-5361, 2002 WL

31553926 (6th Cir. Nov. 12, 2002). That requirement was not met in this instance.

Parries was placed on the third disciplinary level on March 22, 1999, after an

unscheduled absence caused him to exceed his allowable “absentee points” and he failed

to call in as required by company rules. As noted above, supervisor Hoerlein refused to

allow Parries to apply his good points retroactively and suspended Parries for three days.

In contrast, the plaintiff noted, a white co-worker, Brett Manning, similarly exceeded his

permissible absentee points in 1998 without calling in, yet Hoerlein allowed him to apply

his good points retroactively. According to Makino, the difference in treatment was due to

the fact that at the time he was permitted to apply the offset, Manning had been an

employee of Makino for only a few months and told supervisor Hoerlein that he had

misunderstood the absentee policy. Apparently Hoerlein had then explained the policy to

him and warned him not to engage in another infraction. By contrast, Parries had been a

Makino employee for almost ten years and was fully familiar with the policy. Although the

call is a close one, we cannot say that the district court erred in finding that Manning’s

status as a recent employee unfamiliar with the protocol constituted “differentiating or

mitigating circumstances that would distinguish [his] conduct or the employer’s treatment

of [him] for it.” Mitchell, 964 F.2d at 583. Indeed, in 1999 Manning exceeded his allowable

absentee points and was subjected to the usual discipline, three day’s suspension. Finally,

we are not persuaded by the testimony of another white co-worker, Kincaid, who testified

that some employees were allowed to apply good points to absences retrospectively,

because Kincaid was unable to give any details as to when or to whom this happened or

what supervisor was involved.

-9-
 On October 18, 1999, Makino gave Parries a “last chance” warning as a result of

three additional minor infractions. For each one of these infractions, Parries offered

substantial evidence that a similarly-situated white employee was treated better. However,

Parries was disciplined for the combination of the three, not each individual incident.

Parries further argues that the so-called “last chance agreement” was itself evidence of

disparate treatment because it was an unprecedented discipline step that was not

countenanced or mentioned by the union contract. Not surprisingly, however, the district

court found that the agreement actually benefitted Parries because it was in lieu of

immediate termination and thus could not be used as evidence of negative disparate

treatment. However, the existence of the “last chance” warning did not insulate Makino

from arbitration; Parries requested arbitration after being fired under the “last chance

agreement” and won. Notably, although Parries succeeded in his effort to attain

reinstatement, the arbitrator’s order included a statement to the effect that the arbitrator had

given “no weight or substance to any claim of racial discrimination.” This determination

squares with the district court’s finding that the plaintiff failed to show disparate treatment

in any of the disciplinary steps leading up to his 1999 termination and thus has not made

out a prima facie case of racial discrimination with regard to that action by Makino.

We conclude that Parries likewise failed to make out a prima facie case for his 2001

termination under the four McDonnell Douglas elements. He undisputedly met the first

three elements but, as with the 1999 claim, did not adequately demonstrate that he was

replaced by a non-minority person. When Parries was fired in 2001, his duties were split

between two existing workers, both white, who were on a lower union labor grade. Eight

to ten months later, Makino promoted one of these employees, Greg Waites, to the higher

- 10 -
labor grade position Parries had formerly occupied. “Spreading the former duties of a

terminated employee among the remaining employees does not constitute replacement”

and, hence, the question is whether the delayed promotion of Waites constituted

replacement. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1115 (6th Cir.

2001) (quoting Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992)). The record

indicates that Waites took on many, but not all, of the plaintiff’s duties without any initial

change in position or employment status. That fact, together with the substantial delay in

Waites’s promotion, suggests that Waites was not promoted to “replace” Parries directly.

We cannot say that the district court erred in concluding that the plaintiff has failed to

demonstrate that promoting Waites after a long delay was tantamount to replacement.

As an alternative to the fourth McDonnell Douglas element, Parries attempted to

show that the second termination resulted from disparate treatment. In June 2001, Parries

was fired after engaging in a heated discussion with supervisors Morris and Hoerlein and

calling Hoerlein a liar who needed to “get some balls.” Under the union collective

bargaining agreement, however, Makino may terminate employees for offenses of “a

serious nature,” including insubordination, even if the employee has no prior disciplinary

problems. Parries argues that the “get some balls” statement was common shop talk and

did not merit termination, but he presented no evidence of fellow employees making similar

comments to management.

Parries also argues that, even if the final termination incident shows no disparate

treatment, Makino unfairly disciplined him in several incidents which led up to the

discharge. Unlike his situation leading up to the 1999 termination, Parries was not placed

explicitly on escalating levels of discipline, but his disciplinary history clearly did play a role

- 11 -
in Makino’s decision to fire him in 2001. Even when these prior incidents are considered,

however, they do not support an allegation of disparate treatment. In November 2000,

supervisor Hoerlein suspended Parries for five days as a result of his being away from his

workstation without permission. This suspension was subsequently rescinded and Parries

was given back-pay, but he received a written final warning informing him that he was in

violation of the “last chance agreement.” Farmer, a white co-worker who was with Parries

away from the workstations, was given only a documented verbal warning placing him on

discipline level one. Farmer was not similarly situated, however, because Farmer did not

have the history of disciplinary problems that Parries did and was not subject to a “last

chance” warning. Hile, another white co-worker under Hoerlein’s supervision, testified that

he was out of his work area on the same day but was not disciplined. Hile claimed that

someone, he could not remember who, told him that Hoerlein had been looking for him and

knew he was away from his work station. There is no non-hearsay evidence, however, that

Hoerlein had knowledge of Hile’s infraction and, thus, no proof that Hile was similarly

situated to Parries.

In December 2000, Parries was suspended for three days after tape recording a

meeting with management. Parries claimed his punishment was unduly harsh, but he

provided no evidence of other similarly-situated employees being treated differently. In

January 2001, Parries was disciplined more harshly than some white co-workers for

improperly recording his hours but, again, failed to supply evidence that the co-workers

were similarly-situated in terms of disciplinary history, supervisor, or severity of misconduct.

Even if Parries had made out a prima facie case for his two terminations, he has not

provided sufficient evidence to show that Makino’s reasons for the terminations were

- 12 -
pretextual. “ Once a plaintiff establishes a prima facie case of discrimination, the burden

shifts to the defendant to rebut the presumption of discrimination by providing evidence

showing that the plaintiff was terminated for a legitimate nondiscriminatory reason.” Smith

v. Leggett Wire Co., 220 F.3d 752, 758-59 (6th Cir. 2000). Because Makino presented a

race-neutral reason for firing Parries, i.e., his history of disciplinary problems, Parries was

required to “produce sufficient evidence from which the jury [could] reasonably reject the

employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083

(6th Cir. 1994). To make a showing of pretext, “the plaintiff is required to show by a

preponderance of the evidence either (1) that the proffered reasons had no basis in fact,

(2) that the proffered reasons did not actually motivate his discharge, or (3) that they were

insufficient to motivate discharge.” Id. at 1084 (citations omitted). Parries has not

challenged the factual accuracy of the disciplinary infractions and thus does not dispute

pretext under the first manner of showing. In order to show pretext via the second method,

“the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce

additional evidence of . . . discrimination.” Id. at 1084. At this point, the record does not

reflect the production of evidence above and beyond that required for a prima facie

showing, although the matter of the Brian Smith declaration remains to be resolved, see

Section B, infra. The third manner of showing pretext “ordinarily consists of evidence that

other employees . . . were not fired even though they engaged in substantially identical

conduct.” Manzer, 29 F.3d at 1084. Given that Parries could not demonstrate disparate

treatment, he did not satisfied the third method; he failed to show that any other employee

who engaged in the same pattern of infractions was not fired. See Warfield v. Lebanon

Corr. Inst., 181 F.3d 723, 730-31 (6th Cir. 1999) (holding that an employee fired for a series

- 13 -
of incidents alleged to constitute misconduct must show that a similarly-situated employee

engaged in a comparably serious series of bad acts, not merely similar individual acts).

Given the current state of the record, and assuming that the defendant’s motion to

strike the Smith declaration was appropriately entered, we must conclude that Makino’s

motion for summary judgment was properly granted because Parries has not established

a prima facie case of discrimination based on circumstantial evidence, nor did he rebut as

pretextual the employer’s legitimate business reason for discharge. This conclusion,

however, rests as noted on the assumption that the Smith declaration was properly

disregarded by the district court in reaching its decision that the plaintiff’s second

termination was not the result of racial discrimination, an issue that we next consider.

B. The District Court’s Ruling on the Defendant’s Motion to Strike

In addition to attempting to demonstrate an inference of discrimination under the

McDonnell Douglas and Mitchell standards, Parries also argued that there was direct

evidence of racial animus underlying the 2001 termination. A plaintiff who can show direct

evidence of discrimination need not also show the four McDonnell Douglas elements or the

Mitchell disparate treatment standard. See Talley v. Bravo Pitino Restaurant, 61 F.3d

1241, 1248 (6th Cir. 1995). To meet his prima facie burden in this manner, the plaintiff

must present “credible, direct evidence of discriminatory animus,” and the lower court must

then specifically make a finding that plaintiff’s evidence is credible. See id. at 1248. Parries

did so in the form of a declaration by Brian Smith, who claimed to have heard supervisors

Ed Norris and Patrick Ruggiero use the term “nigger” in reference to Parries.

Makino filed a timely motion to strike Smith’s declaration under Federal Rule of Civil

Procedure 26 because the plaintiff had “failed to properly disclose the subject matter of Mr.

- 14 -
Smith’s testimony in violation of his obligations under [Rule] 26 and this Court’s Scheduling

Order.” The district court did not rule on the merits of this motion, instead holding that the

motion was moot because “the Court has not made reference to the declaration[ ] of Brian

Smith.” In light of the importance of the Smith declaration to Parries’s case, the court’s

refusal to “refer” to the declaration could be interpreted as an implicit grant of Makino’s

motion to strike, based on a determination that the declaration was not filed in a timely

manner. However, the evidence is so clearly significant that the district court’s failure to

consider it without adequate explanation is at least puzzling and provides us with an

inadequate basis on which to review the decision. Because we are ordering a remand in

connection with the plaintiff’s retaliation claim, we direct the district court to make an explicit

ruling on the motion to strike and, if the result is a denial of the motion, to consider the

implications of the Smith declaration in terms of the plaintiff’s allegation that it establishes

a case of direct discrimination in connection with his June 2001 discrimination claim.

C. The Retaliation Claim

In addition to his discrimination claims, plaintiff brought a Title VII retaliation claim

against defendant Makino. “To make a prima facie case of Title VII retaliation, a plaintiff

must prove: (1) he engaged in activity protected by Title VII; (2) this exercise of protected

rights was known to defendant; (3) defendant thereafter took adverse employment action

against the plaintiff; and (4) there was a causal connection between the protected activity

and the adverse employment action.” Ford v. Gen. Motors Co., 305 F.3d 545, 552-53 (6th

Cir. 2002). Notably in this case, Sixth Circuit precedent provides that “[t]he burden of

establishing a prima facie case in a retaliation action is not onerous, but one easily met.”

Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

- 15 -
 Makino does not dispute that Parries has shown the first three elements of this test.

Makino knew that Parries filed a claim of discrimination with the Ohio Civil Rights

Commission in the wake of his 1999 termination, and Makino then terminated Parries’s

employment in June 2001. The question remaining is whether Parries has shown sufficient

evidence to raise a genuine issue of material fact as to the causal connection between his

filing of the civil rights claim with the Ohio commission and his discharge. To establish the

causal connection required by the fourth prong, a plaintiff must “put forth some evidence

to deduce a causal connection between the retaliatory action and the protected activity and

requiring the court to draw reasonable inferences from that evidence, provided it is

credible.” Id. at 566. In making this determination, the court must view the evidence in the

light most favorable to the non-movant and must draw all reasonable inferences in the non-

movant’s favor. See Ford, 305 F.3d at 555.

The allegedly retaliatory behavior against Parries began almost immediately after

his reinstatement at work. The Sixth Circuit has found timing to be a relevant factor in a

showing of causal connection. “Although ‘temporal proximity alone will not support an

inference in the face of compelling evidence’ to the contrary, ‘the proximity in time between

protected activity and adverse employment action may give rise to an inference of a causal

connection.” Ford, 305 F.3d at 554-55 (quoting Moon v. Transp. Drivers, Inc., 836 F.2d

226, 229 (6th Cir. 1987)). The relevant measure of time is the period between the

resumption of work after the protected activity and the termination. See Ford, 305 F.3d at

554-55. In Harrison v. Metropolitan Government, 80 F.3d 1107, 1119 (6th Cir. 1996), the

court held that a 15-month time gap was short enough to constitute “temporal proximity.”

Parries was fired by Makino less than 11 months after resuming his employment. Further,

- 16 -
Parries claimed that the first retaliatory behavior occurred on August 16, 2000, a mere eight

days after he returned to work.

As the district court noted, however, in order to show causal connection, a plaintiff

must demonstrate some evidence of retaliatory conduct in addition to temporal proximity.

See Nguyen, 229 F.3d at 566. Although the district court found that there was no such

additional evidence in the record, our review convinces us that the plaintiff was arguably

subjected to excessive scrutiny of his conduct and “more frequent disciplinary writeups of

plaintiff for trivial matters,” which we have held to constitute evidence of retaliatory conduct.

Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Harrison, 80

F.3d at 1119 (“More important, however, is the fact that study of the record in this case

reveals an atmosphere in which the plaintiff’s activities were scrutinized more carefully than

those of comparably situated employees. . .”). The pattern of Parries’s treatment prior to

his 2001 termination indicates such heightened scrutiny and excessive discipline. For

example, in August 2000 supervisor Don Hoerlein twice “counseled” Parries for making

loud or strange noises while working. Parries contends that Hoerlein’s accusations were

false, but even if true, they indicate that Parries was being disciplined for basically “trivial

matters.” In November of the same year, Hoerlein suspended Parries for five days for

being away from his work station without permission. Makino later rescinded the

suspension and granted him back pay, issuing Parries merely a “final warning” as his

punishment.

Parries was disciplined again, in January 2001, when he improperly recorded his

time. Parries claimed that several other co-workers made similar errors, but that Makino

rescinded their discipline after the employees questioned the action. Parries also

- 17 -
challenged his discipline, but the company upheld it. Parries cannot make a claim of

disparate treatment under McDonnell Douglas in regard to this incident because he has not

adequately shown that he was similarly-situated to his co-workers, but he may use the

incident as evidence of retaliation without having to meet the similarly-situated standard.

See Little, 265 F.3d at 365 (crediting that plaintiff was treated more harshly than co-workers

even without evidence that the co-workers were under the same supervisor or had a similar

disciplinary history or level of misconduct).

We recognize that a jury could find that the close supervision Parries received after

his earlier discharge was the result of his history of disciplinary problems leading up to the

1999 dismissal. On the other hand, he was reinstated following post-discharge arbitration,

and a jury could also find that the ensuing level of scrutiny leading up to the dismissal in

2001 was unjustified in terms of the relatively minor nature of the alleged misconduct it

revealed. We conclude that the existence of excessive scrutiny and the reason for it

created a dispute of material fact that was not properly resolved by a grant of summary

judgment on the plaintiff’s retaliation claim.

Moreover, the plaintiff has also identified another factor that is pertinent to the

determination of causal connection in the retaliation setting, and that is increased workload.

See Ford, 305 F.3d at 555. Parries alleged that supervisor Ed Morris assigned him a

disproportionately high number of the difficult jobs and that this overload in his assignments

resulted in Parries’s poor work performance. However, the only evidence to support this

allegation comes from the declaration of Brian Smith, which, as noted above, was not

considered by the district court. If, on remand, it turns out that the Smith declaration should

- 18 -
have been considered in the context of the plaintiff’s discrimination claims, it would also be

relevant to the retaliation claim.

Finally, Parries presented evidence that Makino supervisors discouraged the filing

of grievances and threatened to take retaliatory action against employees who filed them.

In a memo written by Ed Morris requesting that Parries be removed from his supervision

or fired, Morris cited Parries’s history of filing grievances as problematic behavior.

Similarly, supervisor Hoerlein warned white employee Farmer that the company would

“take care of the problem” if Farmer continued to file grievances. Although all of Farmers’s

grievances and some of Parries’s were not based on race and thus were not protected

actions, Parries asserts that this shows a willingness on the part of Makino to punish

employees for making grievances. The Sixth Circuit has found that a supervisor’s

comments indicating an intent to run employees out of his department, combined with the

fact that several employees feared retaliation if they testified at a hearing, sufficiently

established a prima facie case of retaliation. See Harrison, 80 F.3d at 1119. While it

appears that Parries’s situation was not as compelling as the one in Harrison, we conclude

that the two situations are similar enough that Hoerlein’s threats should be considered

evidence that suggests retaliation.

CONCLUSION

For the reasons set out above, we conclude that this case must be remanded to

permit the district court to rule on the merits of the defendant’s motion to strike the

declaration of Brian Smith, filed as an exhibit to the plaintiff’s memorandum in opposition

to the defendant’s motion for summary judgment. That ruling will have an impact on the

tentative conclusions that we have drawn concerning the viability of the plaintiff’s

- 19 -
discrimination claims, in terms both of direct evidence of racial discrimination and of

evidence of pretext to rebut the defendant’s claim that its actions with regard to the

plaintiff’s employment were based on a legitimate business decision. Finally, we conclude

that the defendant is not entitled to summary judgment on the plaintiff’s claim of retaliation,

and we remand the case for further proceedings as to that claim, based on a pattern of

disciplinary actions that were arguably the result of protected activity on the plaintiffs’ part,

as well as the temporal proximity between that protected activity and the plaintiff’s dismissal

in June 2001.

REVERSED AND REMANDED.

- 20 -