Rodriguez v. Fedex Freight East

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0246p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Debtor. -
In re: JOSE ANTONIO RODRIGUEZ,
-
-
-
No. 06-1988
_____________________________
,
>
STUART GOLD, Trustee for the Estate of Jose -
-
Plaintiff-Appellant, -
Antonio Rodriguez,

-
-
-
v.
-
FEDEX FREIGHT EAST, INC., -
Defendant-Appellee. -
-
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-74737—George C. Steeh, District Judge.
Argued: April 24, 2007
Decided and Filed: June 27, 2007
Before: KEITH, BATCHELDER, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: D. Rick Martin, Detroit, Michigan, for Appellant. Laura A. Brodeur, HONIGMAN,
MILLER, SCHWARTZ & COHN, Detroit, Michigan, for Appellee. ON BRIEF: D. Rick Martin,
Detroit, Michigan, for Appellant. Laura A. Brodeur, Matthew S. Disbrow, HONIGMAN, MILLER,
SCHWARTZ & COHN, Detroit, Michigan, for Appellee.
MOORE, J., delivered the opinion of the court, in which KEITH, J., joined.
BATCHELDER, J. (pp. 9-10), delivered a separate concurring opinion.

1
No. 06-1988 In re Rodriguez Page 2

_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Jose Antonio Rodriguez
(“Rodriguez”) sued his former employer, Defendant-Appellee FedEx Freight East, Inc. (“FedEx”),
in a Michigan state court, alleging that FedEx discriminated and retaliated against him on the basis
of his race, in violation of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP.
LAWS §§ 37.2101 et seq. Citing the parties’ diversity of citizenship, FedEx removed the suit to the
United States District Court for the Eastern District of Michigan. Rodriguez subsequently filed for
bankruptcy in the United States Bankruptcy Court for the Eastern District of Michigan (the
“bankruptcy court”), and his claims became assets of the bankruptcy estate. Accordingly, when
FedEx moved for summary judgment on both of Rodriguez’s claims, the district court referred the
motion to the bankruptcy court for resolution. The bankruptcy court granted the motion, dismissing
Rodriguez’s claims with prejudice, and the district court affirmed that judgment. Rodriguez now
appeals. For the reasons set forth below, we AFFIRM IN PART and VACATE IN PART the
district court’s judgment and REMAND this case for further proceedings.
I. BACKGROUND
Rodriguez began working for American Freightways (“American”) as a truck driver in 1999,
under the supervision of Regional Human Resource Manager Rodney Adkinson (“Adkinson”).
Rodriguez subsequently resigned to go into business with his brother, but was rehired by American
in December 2000. In February 2001, FedEx acquired American, and both Rodriguez and Adkinson
became FedEx employees. Rodriguez was based at FedEx’s facility in Romulus, Michigan but spent
most of his time in his truck, making deliveries. Adkinson worked mainly in Indiana but visited the
Romulus facility once or twice a month.
In June 2002, Rodriguez told Adkinson that he (Rodriguez) was interested in becoming a
FedEx supervisor. Adkinson recommended that Rodriguez take FedEx’s Leadership Apprentice
Course (“LAC”), and Rodriguez subsequently enrolled in that program. While Rodriguez was
taking LAC classes, three supervisory positions became vacant. According to then-Customer
Service Manager Jon McKibbon (“McKibbon”), Rodriguez applied and was twice interviewed for
at least one of those positions. McKibbon found Rodriguez to be qualified for the position and
claims that he would have hired Rodriguez but for Adkinson’s stated concern that Rodriguez’s
accent and speech pattern would adversely impact Rodriguez’s ability to rise through the company
ranks. Former FedEx Manager Dale Williams (“Williams”) similarly avers that, when he asked
Adkinson why Rodriguez had not been selected for promotion, Adkinson replied with disparaging
remarks concerning Rodriguez’s “language” and “how he speaks” and stated that Rodriguez was
difficult to understand. Joint Appendix (“J.A.”) at 328 (Williams Aff. at 2 ¶ 8).
According to Rodriguez, both McKibbon and Williams told him of Adkinson’s derogatory
remarks about Rodriguez’s accent and ethnicity and statements to the effect that Adkinson “would
not allow [Rodriguez] to become a supervisor at FedEx because of [Rodriguez’s] Hispanic speech
pattern and accent.” J.A. at 428-29 (Rodriguez Aff. at 2-3 ¶¶ 9-10). Rodriguez asserts that he
complained to various FedEx managers as well as to Adkinson’s direct supervisor, John Ravenille
(“Ravenille”), about this discrimination, but that no corrective action was taken. FedEx employee
Kelly Scrimenti overheard Rodriguez complain to Ravenille on one occasion.
Adkinson denies ever having commented to anyone about Rodriguez’s accent and, in fact,
avers that Rodriguez does not have a noticeable accent. Adkinson claims, instead, that he did not
consider Rodriguez for promotion “due to [Rodriguez’s] lack of commitment to the LAC,” which
No. 06-1988 In re Rodriguez Page 3

Rodriguez concededly never completed and which, according to Adkinson, was a prerequisite of
promotion at FedEx. J.A. at 112-13 (Adkinson Aff. at 2-3 ¶ 9, 11). Adkinson further asserts that
Rodriguez never formally applied for a supervisory (or, indeed, for any other) position with FedEx
and that McKibbon never, to Adkinson’s knowledge, interviewed Rodriguez for a supervisory
position. Adkinson also mentions that he himself played a role in McKibbon’s subsequent
termination, implying that McKibbon may have personal reasons for bolstering Rodriguez’s claims.
On July 30, 2003, Rodriguez resigned from his employment with FedEx, citing FedEx’s
“refus[al] to address [his] numerous complaints of being discriminated against because of [his] race
as an Hispanic-American.” J.A. at 507 1(Rodriguez Resignation Letter). He subsequently filed suit
in Michigan state court, alleging racial discrimination and retaliation in violation of the ELCRA.
FedEx removed the case to federal court on the basis of the parties’ diversity of citizenship and
moved for summary judgment. Rodriguez then filed for bankruptcy, and the district court referred
FedEx’s summary judgment motion to the bankruptcy court, which granted it. Rodriguez appealed
to the district court, which affirmed the bankruptcy court’s judgment. Rodriguez now appeals the
district court’s judgment.
II. JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and (c)(1), based on
the parties’ diversity of citizenship, as Rodriguez is a citizen of Michigan and seeks damages in an
amount greater than $75,000, and FedEx is an Arkansas corporation with its principal place of
business in Arkansas. We possess appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III. ANALYSIS
A. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The moving party
bears the initial burden of showing the absence of a genuine issue of material fact.” Plant v. Morton
Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). Once the movant has satisfied its burden, the
nonmoving party must produce evidence showing that a genuine issue remains. Id.
The court must credit all evidence presented by the nonmoving party and draw all justifiable
inferences in that party’s favor. Id. The nonmovant must, however, “do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is proper when the nonmoving party
has had adequate time for discovery and yet “fails to make a showing sufficient to establish the

1
Rodriguez’s complaint alleges discrimination on the basis of race and not, as might be more appropriate on
these facts, on the basis of national origin. Because, however, the two claims overlap, “it is the substance of the charge
and not its label that controls.” Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 1998) (citing
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)).
It is true that one’s ancestry—the ethnic group from which an individual and his or her ancestors are
descended—is not necessarily the same as one’s national origin—the country where a person was
born, or, more broadly, the country from which his or her ancestors came. Often, however, the two
are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic
group. Moreover, national origin claims have been treated as ancestry or ethnicity claims in some
circumstances. For example, in the Title VII context, the terms overlap as a legal matter.
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (internal quotation marks and
citation omitted); see also MICH. COMP. LAWS § 37.2202(1)(a). For the sake of clarity and consistency, Rodriguez’s
discrimination claim is hereinafter characterized as one based upon national origin.
No. 06-1988 In re Rodriguez Page 4

existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322. We review a district court’s grant of summary judgment
de novo. See, e.g., Spencer v. Bouchard, 449 F.3d 721, 727 (6th Cir. 2006).
B. Rodriguez’s Discrimination Claims
1. Failure to Promote
“Cases brought pursuant to the ELCRA are analyzed under the same evidentiary framework
used in Title VII cases.” Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). “Intentional
discrimination can be proven by direct and circumstantial evidence.” DeBrow v. Century 21 Great
Lakes, Inc., 620 N.W.2d 836, 838 (Mich. 2001). “In discrimination cases, direct evidence is that
evidence which, if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales
Corp., 176 F.3d 921, 926 (6th Cir. 1999). “Consistent with this definition, direct evidence of
discrimination does not require a factfinder to draw any inferences in order to conclude that the
challenged employment action was motivated at least in part by prejudice against members of the
protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). “In direct evidence
cases, once a plaintiff shows that the prohibited classification played a motivating part in the
employment decision, the burden of both production and persuasion shifts to the employer to prove
that it would have terminated the employee even if it had not been motivated by impermissible
discrimination.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
“A plaintiff who lacks direct evidence of discrimination may still establish a prima facie case
of discrimination by proving the elements of [his] cause of action as set out in federal discrimination
jurisprudence.” Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 522 (6th Cir. 1997). Michigan
courts utilize the federal McDonnell Douglas burden-shifting framework for evaluating
discrimination claims founded upon circumstantial evidence. Hazle v. Ford Motor Co., 628 N.W.2d
515, 520-21 (Mich. 2001); Humenny, 390 F.3d at 906. The McDonnell Douglas analysis requires
a plaintiff first to establish a prima facie case of discrimination by establishing that (1) he is a
member of a protected group; (2) he was qualified for the job; (3) he suffered an adverse
employment action; and (4) that adverse employment action occurred under circumstances giving
rise to an inference of discrimination. Hazle, 628 N.W.2d at 521. If the plaintiff succeeds in
establishing a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-
discriminatory rationale for the adverse employment action. Id. at 521-22. Once the employer does
so, the burden shifts back to the plaintiff to demonstrate that the articulated reason is a mere pretext
for discrimination. Id. at 522.
In contending that Rodriguez has failed to establish a prima facie case of discrimination
based upon FedEx’s failure to promote him, FedEx first argues that Rodriguez’s proffered
evidence—his own affidavit, along with those of McKibbon and Williams—is inadmissible hearsay.
FedEx is incorrect, at least with regard to the McKibbon and Williams affidavits, which are
admissible non-hearsay. Adkinson’s statements concerning Rodriguez’s accent and speech pattern,
as recounted in those affidavits, were allegedly made during Adkinson’s employment with FedEx,
to a lower-level supervisor who otherwise would have promoted Rodriguez, and in response to a
direct inquiry from another manager regarding the reason for Adkinson’s refusal to promote
Rodriguez. It is clear, therefore, that Adkinson made the alleged statements during the course and
in the scope of his employment with FedEx. See FED. R. EVID. 801(d)(2)(D).
FedEx also contends that Rodriguez’s evidence does not establish each required element of
the prima facie case. The district court, applying the McDonnell Douglas framework, concluded that
Rodriguez’s prima facie case failed because he had not shown that he applied and was qualified for
a promotion or that a similarly situated non-Hispanic employee had received preferential treatment.
No. 06-1988 In re Rodriguez Page 5

Before reviewing that ruling, we first consider whether Rodriguez’s evidence concerning
Adkinson’s remarks is properly characterized as direct or circumstantial.
Our precedents, though admittedly not perfectly clear concerning this issue, suggest that the
evidence is direct. In Ang v. Procter & Gamble Co., 932 F.2d 540 (6th Cir. 1991), we2 stated that
“accent and national origin are inextricably intertwined.” Id. at 549 (internal quotation marks
omitted) (citing Fragante v. City & County of Honolulu, 888 F.2d 591 (9th Cir. 1989), cert. denied,
494 U.S. 1081 (1990)). We also noted that “[t]he [Equal Employment Opportunity Commission
(“EEOC”)] recognizes linguistic discrimination as national origin discrimination” and that our
earlier opinion in Berke v. Ohio Dep’t of Pub. Welfare, 628 F.2d 980, 981 (6th Cir. 1980), “also3
recognized that discrimination based on manner of speaking can be national origin discrimination.”
932 F.2d at 549 (citing 29 C.F.R. § 1606).4 More recently, in Momah v. Dominguez, 175 F. App’x
11 (6th Cir. 2006), vacated & remanded on other grounds, 127 S. Ct. 933 (2007), we rejected the
plaintiff’s argument that “comments . . . regarding his African accent and his poor command of the
English language” constituted direct evidence, but only “because neither [of the individuals who
made the comments was] responsible for the allegedly discriminatory employment action.” Id. at
19.
Our characterization of Adkinson’s comments concerning Rodriguez’s accent as direct
evidence of national-origin discrimination is consistent with the Supreme Court’s statements on the
subject. See Hernandez v. New York, 500 U.S. 352, 371 (1991) (“It may well be, for certain ethnic
groups and in some communities, that proficiency in a particular language, like skin color, should
be treated as a surrogate for race under an equal protection analysis.”); Espinoza v. Farah Mfg. Co.,
414 U.S. 86, 92-93 & n.5 (1973) (finding no evidence of national-origin discrimination where there
was “no suggestion, for example, that the company refused to hire aliens of Mexican or Spanish-
speaking background while hiring those of other national origins”), abrogated on other grounds by
8 U.S.C. § 1324(b). It also comports with the holdings of our sister circuits. See Akouri v. Florida
Dep’t of Transp., 408 F.3d 1338, 1347-48 (11th Cir. 2005) (holding that a supervisor’s statement
that the plaintiff had not been promoted because his fellow employees “are all white and they are
not going to take orders from you, especially if you have an accent” constituted direct evidence,
“because the statement relates directly to the [employer’s] decision . . . and blatantly states that the
reason [that the plaintiff] was passed over for the promotion was his ethnicity”); Ghosh v. Getto, 146
F. App’x 840, 846 (7th Cir. 2005) (rejecting the plaintiff’s argument that a co-worker’s statement
that “people are biased and prejudiced against you if you’re not white, if you speak with an accent”
constituted direct evidence only because the statement did “not belie a prejudicial mind set on the
part of the decision maker, but rather observations of how third parties might be prejudiced”
(internal quotation marks omitted)); Bhella v. England, 91 F. App’x 835, 846 (4th Cir. 2004)
(holding that evidence that fellow employees had mocked the plaintiff’s Indian accent was “not
sufficiently connected to the actions taken against [the plaintiff] to carry [her] burden of proving that

2
The Michigan courts use the same definition of direct evidence that we do. See Hazle v. Ford Motor Co., 628
N.W.2d 515, 520 (Mich. 2001).
3
We note that Berke affirmed the district court’s application of the McDonnell Douglas circumstantial-evidence
framework to a claim of national-origin discrimination based upon the plaintiff’s accent. 628 F.2d at 981. Because the
opinion is devoid of reasoning, however, it is not clear whether the Berke panel based its holding upon a determination
that the evidence was circumstantial in character or simply concluded that the district court, having decided that the
McDonnell Douglas test was the applicable framework, properly applied each prong of the test. Accordingly, we do not
construe Berke as binding precedent concerning the nature of the evidence at issue here.
4
The relevant regulation “defines national origin discrimination broadly as including, but not limited to, the
denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because
an individual has the physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1.
No. 06-1988 In re Rodriguez Page 6

the actions were motivated by discriminatory animus”); but see Amro v. Boeing Co., No. 97-3049,
1998 WL 380510, at *2 n.3 (10th Cir. 1998) (unpublished order) (“We construe comments about
foreign accent to constitute indirect evidence of national origin discrimination.”).
The question, then, is whether FedEx has borne its burden by demonstrating that it would
have refused to promote Rodriguez even absent a discriminatory motive. FedEx argues that
Rodriguez’s failure to complete the LAC, combined with FedEx’s claimed policy against promoting
drivers directly into supervisory positions, satisfy that burden. Because it is for the district court to
make this determination, applying the appropriate standard, in the first instance, see Thaddeus-X v.
Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en banc), we vacate the grant of summary judgment in
favor of FedEx on Rodriguez’s failure-to-promote claim and remand that claim for further
proceedings.
2. Hostile Work Environment and Constructive Discharge
To establish a prima facie claim based upon a hostile work environment, a plaintiff must
establish that:
(1) the employee belonged to a protected group; (2) the employee was subjected to
communication or conduct on the basis of [his] protected status; (3) the employee
was subjected to unwelcome . . . conduct or communication involving [his] protected
status; (4) the unwelcome . . . conduct was intended to or in fact did substantially
interfere with the employee’s employment or created an intimidating, hostile, or
offensive work environment; and (5) respondeat superior.
Quinto v. Cross & Peters Co., 547 N.W.2d 314, 319-20 (Mich. 1996) (internal quotation marks and
brackets omitted) (second and fourth alterations in original).
“[T]o survive summary disposition, [a] plaintiff [must] present documentary evidence to the
trial court that a genuine issue exist[s] regarding whether a reasonable person would find that, in the
totality of circumstances, [the unwelcome conduct was] sufficiently severe or pervasive to create
a hostile work environment.” Id. at 320. “When 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,” a plaintiff can prevail on a
hostile-environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation
marks and citations omitted). However, “simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the terms and conditions
of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation
marks and citation omitted). Similarly, “a constructive discharge occurs only where an employer
or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel
compelled to resign.” Champion v. Nationwide Sec., Inc., 545 N.W.2d 596, 600 (Mich. 1996),
quoted in Hartleip v. McNeilab, Inc., 83 F.3d 767, 776 n.10 (6th Cir. 1996).
The district court correctly concluded that Rodriguez had failed to establish a prima facie
case under either doctrine. We have rejected hostile-environment claims arising from facts far more
compelling than those alleged in this case:
[A] hostile work environment was not shown where, over a two[-]month period, a
male supervisor continuously made sexually suggestive comments about the female
plaintiff’s appearance, touched her breast as he removed and replaced a pen from her
shirt pocket, leered at her, and told her that if he had someone like her, he would
never let her leave the house. See Stacy v. Shoney’s, Inc., No. 97-5393, 1998 WL
165139, at *1-3 (6th Cir. 1998) (unpublished). The Seventh Circuit found that
alleged harassment lacked severity where, over a two-year period, a male supervisor
No. 06-1988 In re Rodriguez Page 7

and co-workers[] made sexual jokes about the plaintiff, commented on how she
should eat a banana, told her not to wave at squad cars because people would think
she was a prostitute, stared at her breasts, and touched her on the arms, fingers, and
may have once poked at her buttocks. Adusumilli v. City of Chicago, 164 F.3d 353,
357 (7th Cir. 1998).
Clark v. United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir. 2005).
Similarly, we have held that a plaintiff cannot establish a constructive discharge by claiming,
without more, that his employer’s “failure to promote [him] to what [he] perceives as [his] rightful
position created intolerable work conditions.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996),
cert. denied, 519 U.S. 1055 (1997). “If we were to accept this line of reasoning, every person passed
over for a purportedly deserved promotion could bring an illegal discharge suit, and the distinction
between the two would be erased.” Id. Accordingly, the district court did not err in granting
summary judgment in favor of FedEx on Rodriguez’s hostile-environment and constructive-
discharge claims.
C. Retaliation
A plaintiff alleging retaliation in violation of the ELCRA must establish the following
elements of a prima facie case:
(1) that the plaintiff engaged in a protected activity, (2) that this was known by the
defendant, (3) that the defendant took an employment action adverse to the plaintiff,
and (4) that there was a causal connection between the protected activity and the
adverse employment action.
Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001) (internal quotation marks
omitted), app. denied, 639 N.W.2d 809 (Mich. 2002), quoted in Scott v. Total Renal Care, Inc., 194
F. App’x 292, 300 (6th Cir. 2006). “To establish causation, the plaintiff must show that his
participation in activity protected by the [ELCRA] was a significant factor in the employer’s adverse
employment action, not just that there was a causal link between the two.” Barrett, 628 N.W.2d at
70 (internal quotation marks omitted).
The district court summarily disposed of Rodriguez’s retaliation claim, stating only that
“Rodriguez failed to proffer evidence that would permit a reasonable jury to conclude that FedEx
gave a supervisory position to an unnamed ‘White new hire off the streets’ or Jim Johnson in
retaliation for Rodriguez’s complaints of race discrimination . . . .” J.A. at 664 (Dist. Ct. Order
Aff’g Bankr. Ct. J. at 17). We may, however, affirm the district court’s judgment on any ground
supported by the record. Leary v. Daeschner, 228 F.3d 729, 741 n.7 (6th Cir. 2000).
“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.’” 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)). In
Walcott, we affirmed the district court’s grant of summary judgment on the plaintiff’s retaliation
claim “because [plaintiff] cannot demonstrate that she was treated differently before and after filing
the EEOC charges.” Id. at 179. “Defendants first failed to promote Walcott six months prior to her
first EEOC filing; the fact that they did so again four months after that filing (and a third time, a
month after her second EEOC filing) is insufficient to raise an inference of a retaliatory animus.”
Id.
No. 06-1988 In re Rodriguez Page 8

Similarly, in this case, Rodriguez has proffered no evidence that FedEx’s continued failure
to promote him after his first complaint was a result of that complaint. Accordingly, the district
court did not err in granting summary judgment for FedEx on Rodriguez’s retaliation claim.
IV. CONCLUSION
For the reasons set forth above, we hereby VACATE the district court’s grant of summary
judgment for FedEx on Rodriguez’s discrimination claim based upon FedEx’s failure to promote
him, and REMAND that claim to the district court for further proceedings. We AFFIRM the
district court’s grant of summary judgment for FedEx on Rodriguez’s hostile-environment,
constructive-discharge, and retaliation claims.
No. 06-1988 In re Rodriguez Page 9

_________________
CONCURRENCE
_________________
ALICE M. BATCHELDER, Circuit Judge, concurring. I agree with the lead opinion as to
Rodriguez’s claims of constructive-discharge, hostile-environment, and retaliation. And while I
agree with the lead opinion that we should reverse the district court’s grant of summary judgment
and remand the case for further proceedings, I disagree with its reasoning in reaching this result.
The lead opinion concludes that Rodriguez has produced direct evidence that FedEx failed to
promote him based on his national origin. I, however, do not think Rodriguez had presented direct
evidence to establish his claim of unlawful employment discrimination, and instead would apply the
McDonnell Douglas burden-shifting approach. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973).
“[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Amini v. Oberlin College,
440 F.3d 350, 359 (6th Cir. 2006) (citation omitted). Critically, direct evidence “proves the
existence of a fact without any inferences or presumptions.” Abbott v. Crown Motor Co., 348 F.3d
537, 542 (6th Cir. 2003) (quoting Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir.1999)). “Such
evidence would take the form, for example, of an employer telling an employee, ‘I fired you because
you are disabled,’” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998), or, for our purposes,
“I did not promote you because of your Hispanic origin.” Our circuit has acknowledged that
“[r]arely will there be direct evidence from the lips of the defendant proclaiming his or her
[discriminatory] animus,” Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998), and I find that
Rodriguez has not presented such evidence here.
The lead opinion cites the affidavits of McKibbon and Williams as direct evidence of
FedEx’s national origin discrimination. Williams averred that he had a conversation with Adkinson
about Rodriguez, during a weekly management meeting. At that time, FedEx was short a supervisor
and Adkinson indicated that he had conducted interviews, including existing FedEx employees, to
fill the position, but he had not found a qualified candidate. Williams suggested Rodriguez as a
possible candidate. In response, Adkinson stated that “Jose is a good worker and could some day
move into management.” Williams then asked, in that case, why not consider Rodriguez as a
candidate for the opening. Adkinson responded, “because of Jose’s ‘language’ and ‘how he speaks,’
people would have a hard time understanding him.” When Williams asked Adkinson if that was his
only reason for not choosing Rodriguez for the position, Adkinson responded “pretty much.”
McKibbon stated that a supervisor position came open and it was FedEx’s practice to
promote internally if there was a qualified employee. Rodriguez applied for the supervisor position.
McKibbon interviewed Rodriguez two times for that position and concluded that Rodriguez was
qualified for the position. McKibbon stated that he “did not hire [Rodriguez] for the supervisor
position because . . . Adkinson said he was concerned about [Rodriguez’s] accent, speech pattern,
and capability to move up in the company.” McKibbon declared that Adkinson had made these
statements to him on several occasions in McKibbon’s office.
While “discrimination based on manner of speaking can be national origin discrimination,”
Ang v. Procter & Gamble Co., 932 F.2d 540, 549 (6th Cir. 1991) (emphasis added), I do not agree
that McKibbon’s and Williams’s affidavits constitute direct evidence of national origin
discrimination here. One must infer that Adkinson’s concern for Rodriguez’s “accent,” “speech
pattern,” “language,” and “how he speaks” was based on Rodriguez’s national origin—and not, for
instance, a speech impediment or Rodriguez’s ability to successfully fulfill a supervisory position.
As the Ninth Circuit pointed out many years ago,
No. 06-1988 In re Rodriguez Page 10

Accent and national origin are obviously inextricably intertwined in many cases. It
would therefore be an easy refuge in this context for an employer unlawfully
discriminating against someone based on national origin to state falsely that it was
not the person’s national origin that caused the employment or promotion problem,
but the candidate’s inability to measure up to the communications skills demanded
by the job.
Fragante v. Honolulu, 888 F.2d 591, 596 (9th Cir. 1989) (emphasis added).
To be sure, Williams’s and McKibbon’s affidavits provide circumstantial evidence that
FedEx’s proffered reason for failing to promote Rodriguez may well have been pretextual.
Accordingly, I find that Rodriguez has provided enough circumstantial evidence to withstand
FedEx’s motion for summary judgment, and agree with the lead opinion, that this case should be
remanded for further proceedings. But I simply do not find that Rodriguez presented any direct
evidence to establish his claim.