Burks v. Yellow Transportation, Inc.

NOT FOR FULL-TEXT PUBLICATION
File Name: 08a0016n.06
Filed: January 8, 2008

No. 07-3201

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JAMES H. BURKS, IV, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
YELLOW TRANSPORTATION, INC., ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
)
)
)

Before: SILER, GIBBONS, and McKEAGUE, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant James H. Burks, IV, appeals

the district court’s grant of summary judgment to defendant-appellee Yellow Transportation, Inc.,

(“Yellow Transportation”) on his claim of employment discrimination on the basis of race, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §

1981. Specifically, Burks contends that the district court erred in concluding that he failed to present

any evidence refuting Yellow Transportation’s assertion that he was not promoted to a full-time

position due to his poor performance and attitude. For the reasons that follow, we affirm the

judgment of the district court.

1
 I.

Yellow Transportation employed plaintiff-appellant Burks as an on-call dockworker, or

“casual,” from March 2004 to August 2004 at its Cincinnati, Ohio, terminal. Burks attended an

orientation class on March 12, 2004, and began working as a casual on March 26, 2004; his last day

of work was August 27, 2004.

Yellow Transportation provides transportation of goods and merchandise by truck and

operates approximately 332 terminals throughout the United States. The company employs casual

dockworkers on an as-needed basis to replace absent regular full-time dockworkers or to supplement

its regular workforce during temporary periods of increased business. Casuals load and unload

freight from trailers and move freight around the dock. The company maintains that there is no

guarantee that a causal will be offered a full-time position, nor is there any set period of time a casual

will typically work before being offered a full-time position. In fact, the company asserts, some

casuals may work for years before they are offered full-time positions.

According to Yellow Transportation, dock supervisors and managers evaluate casuals based

on the quality and quantity of their work, their availability and reliability, and their attitude. Dock

supervisors are asked to make recommendations for full-time hires when such positions become

available. During Burks’s tenure at Yellow Transportation, Terminal Manager Scott Korab, General

Operations Manager Steve Buckley, and Dock Supervisor and City Operations Manager Derrick

Edwards were responsible for determining which casuals would be offered full-time positions.

Burks maintains that in order to qualify as a casual, an applicant must pass a physical fitness

examination and a forklift operation test. Additionally, Burks states, in order to qualify for

consideration as a full-time employee, a casual must pass a drug test. Burks passed the physical

2
fitness examination and the forklift test, which were administered by Steve Buckley, on his

orientation day, March 12. Burks took the drug test on May 17, and his managers were notified that

he passed the test on May 20.

In 2004, the Cincinnati terminal employed approximately six to ten casual employees and

approximately sixty to eighty full-time dockworkers at any given time. In May 2004, Yellow

Transportation promoted four white casuals who attended orientations either at the same time as

Burks or later.1 In June 2004, Yellow Transportation promoted seven white casuals and two African-

American casuals, all of whom attended orientation sessions after Burks began working for the

company.2 Yellow Transportation asserts that it declined to offer full-time positions to eight white

casuals during 2004 for the same or similar reasons as it declined to offer Burks a position.

Burks and Yellow Transportation present conflicting accounts of the initial weeks of Burks’s

employment at the company. Yellow Transportation maintains that on March 24 and March 25, two

weeks after Burks’s orientation session, the company called Burks to inform him that there was work

available; the company’s logbooks show that Burks was marked as being unavailable for work.

However, Burks claims that Yellow Transportation did not call him on March 24 and March 25.

Rather, Burks asserts, on March 25, he went to the Cincinnati terminal to inquire as to why he had

not been called to work. In response to his inquiry, Steve Buckley informed Burks that he had lost

1
Yellow Transportation notes that it promoted one African-American individual from casual
to full-time employee on the first day Burks worked, March 26.
2
The two African-American casuals were promoted on June 13 and 14, several days after
Burks complained of discrimination to Scott Korab, see infra.

3
Burks’s phone number and told Burks to come to work the next day. Scott Andrews, a full-time

dockworker at Yellow Transportation, corroborated Burks’s version of these events in an affidavit.

Buckley, Burks asserts, failed to take him seriously from the outset of his employment with

Yellow Transportation. Burks testified that on his orientation day, he shared with Buckley that he

had aspirations to move upward in the company. Burks stated that he had “a lot to offer” and asked

what he could do to improve the company and his position in it. In response, Burks states, Buckley

laughed and walked away.

Additionally, Burks explains, he was forced to confront Buckley regarding drug screening,

which was a prerequisite to a full-time position. During his orientation, Burks received a “Pre-

Employment Drug Screen Notification Form,” which he was told not to sign until he received further

instruction from Buckley. When Burks discovered that his co-workers had taken the drug test, he

confronted Buckley about the test. Buckley then authorized his drug test. Burks signed the drug

screen form on May 13, and Buckley and Scott Korab were notified by email on May 20 that Burks

had passed the test. Burks notes that his drug test occurred on a later date than the drug tests of the

four white employees who were promoted in early May, and he further asserts that the seven white

casuals who were promoted in June were also drug screened promptly after their orientation

sessions.3

3
Burks also contends that his “paperset”—a term Yellow Transportation uses for the
paperwork required to approve either a union or non-union hire—was sent to Yellow
Transportation’s Kansas City office at a later date than the papersets of his white co-workers. His
employment application is date-stamped May 27, 2004. Burks does not provide comparable date-
stamped employment applications for other employees, however. Burks does note that a former
Yellow Transportation human resources specialist testified that a casual’s application/“paperset”
would normally be sent to Kansas City after a casual had worked at least five days. Burks’s
employment application was date-stamped after he had worked 22 days at Yellow Transportation.
However, there is no evidence of when this application was sent to Kansas City.

4
 As noted above, in early May, Yellow Transportation promoted four white casuals who

attended either the same orientation session as Burks or a later session. When Burks discovered this,

he confronted Buckley once again. Buckley told Burks that he needed notes from two managers

recommending him for a full-time position. Burks claims that he obtained the necessary

recommendations from two managers; however, there is no record in the company’s files or Burks’s

personnel file of these recommendations.

At some point during Burks’s tenure at Yellow Transportation, two full-time dockworkers,

Scott Andrews and Gary Jackson, questioned Buckley as to why white casuals with later orientation

dates than Burks had been promoted to full-time positions while Burks had not been promoted.

Buckley replied that Burks had an “attitude problem.”

Burks approached Scott Korab on or about June 4, 2004, and expressed his belief that

Buckley was discriminating against him. Korab avers that he spoke with Buckley and other dock

supervisors in order to investigate Burks’s allegation. According to Korab, the supervisors

responded that Burks had not been recommended for a full-time position because he was unreliable

and his performance and attitude were poor. Burks also confronted Buckley with his allegation of

discrimination, and Buckley told Burks that, in his opinion, Burks was being treated fairly.

Indeed, Yellow Transportation maintains that a number of Burks’s supervisors found that his

performance and attitude were poor. The company sporadically documented Burks’s performance

on a comment sheet. The first record on the comment sheet, dated May 18-19, 2004, states that

Burks did not put forth “good effort” and lacked the drive to handle carton freight. The record,

made by Derrick Edwards, further notes that Burks showed no motivation to perform his job or

5
improve his performance, failed to meet expectations, and did not follow directions. Edwards noted

on the comment sheet that he would not recommend Burks for a full-time position.

Additionally, on July 9, 2004, Jack Flaig, a dock supervisor, recorded on the comment sheet

that Burks performed his job slowly and had three misloads, which forced other dockworkers to

correct Burks’s mistakes. Flaig noted that, on three occasions, he had to tell Burks to stop talking

with his co-workers and get back to work. Flaig’s affidavit also states that he thought Burks had a

poor attitude and, at the time of Burks’s employment, he did not believe that Yellow Transportation

should offer Burks a full-time position.

Buckley’s affidavit also recounts that Burks demonstrated a poor attitude at work;

specifically, Buckley states that Burks responded very poorly when his mistakes were pointed out

and would often become argumentative. Buckley noted that although Burks continually inquired

about when he would be offered a full-time position, he ignored directives to improve his

performance.

Yellow Transportation also claims that Burks failed to respond on a number of days when

the company called him to work. Burks indicated on his employment application that he would be

available for work on any day of the week. The company’s proffered records show, however, that

Burks failed to respond to work calls on March 24, March 25, April 25, August 1, August 6, August

17, August 29, and September 5. As already noted, Burks asserts that he was never contacted on

March 24 and March 25 and that he went to the Yellow Transportation on March 25 to inquire as

to why he had not been called to work.

Yellow Transportation maintains that when full-time positions became available in May and

June, Burks was not promoted because his work record, as described above, was inferior to the work

6
records of other available casuals. The company claims that it continued to employ Burks as a casual

because it experienced steadily increasing freight volume during the months in which Burks was

employed; thus, the company states, Burks was given the opportunity to improve his work

performance.

Burks’s last day of work at Yellow Transportation was August 27, 2004. In August, Burks

worked only occasionally, and, as explained above, he often did not respond to the company’s calls.

Burks testified that he “quit” working at Yellow Transportation by not responding to the company’s

calls for work and by the telling Buckley that he was not going to return. Burks filed a complaint

with the Equal Employment Opportunity Commission (“EEOC”) on September 22, 2004, and the

EEOC issued Burks a “right to sue” letter on July 26, 2005.

On October 23, 2005, Burks filed a complaint in federal district court, alleging racial

discrimination and retaliation claims under Title VII, as well as a state law unlawful termination

claim. Yellow Transportation moved for summary judgment, which the district court granted. In

its opinion, the district court noted that Burks had abandoned his Title VII retaliation claim and his

state law wrongful termination claim by failing to address these claims in responsive briefing. Burks

does not pursue these claims on appeal. With respect to Burks’s Title VII claim of discrimination

on the basis of race, the district court determined that Burks failed to present sufficient evidence

demonstrating that Yellow Transportation’s proffered nondiscriminatory reasons for failing to

promote Burks were pretext for discrimination. Burks filed a timely notice of appeal on February

21, 2007.

II.

7
 This court reviews a district court’s grant of summary judgment de novo. Michael v.

Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007). Summary judgment will be

affirmed 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 “a reasonable jury could return a verdict for the

nonmoving party,” summary judgment for the moving party is inappropriate. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court's decision, this court draws

all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

A plaintiff may establish a claim of racial discrimination under Title VII by presenting either

direct evidence of discrimination or circumstantial evidence supporting an inference of

discrimination.4 DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004) (citing Kline v. Tenn. Valley

Auth., 128 F.3d 337, 348 (6th Cir.1997)). As no direct evidence of discrimination is present in this

case, the court must apply the tripartite burden-shifting framework established by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Michael, 496 F.3d at 593. Under the

McDonnell Douglas framework, a plaintiff bears the initial burden of demonstrating a prima facie

claim of discrimination. Id. If the plaintiff fulfills this burden, the defendant must put forth a

legitimate, nondiscriminatory reason for its employment action. Id. Finally, if the defendant meets

this obligation, the burden shifts back to the plaintiff to prove that the proffered reason was a pretext

4
Burks’s complaint also asserts a claim under 42 U.S.C. § 1981, although his brief fails to
mention it. Burks’s § 1981 claim is subject to the same analysis as his Title VII claim. See Noble
v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004) (citing Johnson v. Univ. of Cincinnati, 215
F.3d 561, 573 n.5 (6th Cir. 2000)).

8
for race discrimination. Id. Throughout the burden-shifting analysis, “‘[t]he ultimate burden of

persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains

at all times with the plaintiff.’” DiCarlo, 358 F.3d at 415 (quoting Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)).

A.

To establish a prima facie claim of discrimination based on failure to promote, a plaintiff

must show: “(1) he is a member of a protected class; (2) he applied and was qualified for a

promotion; (3) he was considered for and denied the promotion; and (4) other employees of similar

qualifications who were not members of the protected class received promotions.” Dews v. A.B.

Dick Co., 231 F.3d 1016, 1020-21 (6th Cir. 2000) (citations omitted). The district court concluded

that Burks had proven a prima facie case of discrimination, and Yellow Transportation does not

appeal this determination.5

B.

Once a plaintiff has established a prima facie case, the burden then shifts back to the

defendant to articulate a legitimate, nondiscriminatory reason for its action. Michael, 496 F.3d at

5
In its analysis of Burks’s prima facie case, the district court noted that Burks is African-
American and thus a member of a protected class, was qualified for the position, and was rejected
for the position. As to the qualification requirement, the district court explained that Burks
demonstrated that he passed the necessary physical fitness exam, the forklift test, and the drug
screening. In rejecting Yellow Transportation’s argument that Burks failed to satisfy the fourth
prong of the prima facie case—that employees of similar qualifications who were not members of
the protected class received promotions—the district court noted that courts “may not consider the
employer’s alleged nondiscriminatory reason for taking an adverse employment action when
analyzing the prima facie case.” (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574
(6th Cir. 2003) (en banc)). Because Yellow Transportation argued that Burks was not similarly
situated due to his performance and reliability problems—the company’s alleged nondiscriminatory
reasons for failing to promote Burks—Yellow Transportation’s argument that Burks did not satisfy
the fourth prong failed.

9
593. Yellow Transportation advances three reasons for its failure to promote Burks from casual to

full-time employee: (1) Burks had a poor record of availability and reliability because he failed to

respond to work calls; (2) Burks performed his job poorly; and (3) Burks had a poor attitude.

Burks argues that Yellow Transportation failed to carry its burden of articulating a legitimate,

non-discriminatory reason for its failure to promote him. To this end, Burks, citing the “honest

belief” doctrine articulated in Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998), contends

that the Sixth Circuit has indicated that an employer is required to present “something more in the

way of evidence” than Yellow Transportation has proffered in order to satisfy its McDonnell

Douglas burden. However, Burks has misread Smith. The Smith honest belief doctrine is considered

after the burden has shifted back to the plaintiff to prove pretext. Indeed, in Smith itself, the parties

and the court accepted that the defendant had articulated a legitimate, nondiscriminatory reason for

its employment action; the honest belief doctrine was considered after the burden had shifted back

to the plaintiff. Smith, 155 F.3d at 805-09; see also, e.g., Braithwaite v. Timken Co., 258 F.3d 488,

493-95 (6th Cir. 2001) (considering the honest belief doctrine after burden shifted back to plaintiff

to prove pretext). To the extent that Burks contends that Yellow Transportation’s reasons are

pretextual under Smith, this argument is more properly considered after the burden has shifted back

to Burks.

Yellow Transportation has satisfied its burden of production under the second step of the

McDonnell Douglas framework. The company supports its three proffered reasons for not

promoting Burks with affidavits from Burks’s supervisors asserting that Burks performed poorly,

had a poor attitude, and was unreliable. Moreover, it has submitted evidence in the form of logbooks

and Burks’s comment sheet in support of its reasons for not promoting Burks. “The defendant need

10
not persuade the court that it was actually motivated by the proffered reasons” in order to fulfill its

burden. Burdine, 450 U.S. at 254. Accordingly, the burden now shifts back to Burks to prove

pretext.

C.

Under the McDonnell Douglas framework, if the defendant carries its burden of production,

then the plaintiff must “‘prove that the proffered reason was actually a pretext to hide unlawful

discrimination.’” Michael, 496 F.3d at 593 (quoting Carter v. Univ. of Toledo, 349 F.3d 269, 273

(6th Cir. 2003)). A plaintiff can establish pretext by demonstrating that the defendant’s proffered

reason: “(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct,

or (3) was insufficient to warrant the challenged conduct.” Dews, 231 F.3d at 1021.

With respect to Yellow Transportation’s first proffered reason—Burks’s unavailability and

unreliability—the district court determined that Burks presented evidence refuting its factual basis

and suggesting that it was an insufficient reason for the company’s decision not to promote Burks.

However, the district court further determined that Burks had failed to produce any evidence refuting

Yellow Transportation’s assertion that his performance was poor and that he had a bad attitude.

Yellow Transportation contends that the district court erred in its determination that Burks

presented evidence creating issues of fact regarding the company’s assertion that it failed to promote

Burks because of his poor record of availability and reliability. The district court, however, properly

concluded that Burks demonstrated the existence of questions of fact with respect to his alleged

unreliability. Yellow Transportation maintains that its records show that Burks failed to respond to

work calls on March 24, March 25, April 25, August 1, August 6, August 17, August 29, and

September 5, and, thus, he was unreliable. The district court correctly noted that Burks’s failure to

11
respond to work calls in August and September obviously cannot be used to justify Yellow

Transportation’s failure to promote Burks in May and June. With respect to the March 24, March

25, and April 25 calls, Burks denies that he ever turned down a work call. Specifically, with respect

to the alleged March 24 and March 25 calls, Burks testified that on March 25, he went to Yellow

Transportation to inquire as to why he had not been called to work. Burks explained that Buckley

said that he had lost Burks’s phone number and told Burks to come to work the next day. Burks’s

account of not having received the March 24 and March 25 calls and his appearance at Yellow

Transportation on March 25 is corroborated by the declaration of Scott Andrews, which provides a

similar account of the events. Thus, Burks has created an issue of fact regarding the factual basis

of his alleged unavailability and unreliability. See id.

However, Burks does not present sufficient evidence to rebut Yellow Transportation’s two

other nondiscriminatory reasons for failing to promote Burks: his poor performance and attitude.

Yellow Transportation produced statements from Edwards, Buckley, and Flaig regarding Burks’s

poor performance and poor attitude. Additionally, the casual comment sheet documents instances

of Burks’s poor performance. Although Burks’s affidavit and testimony indicates that he believed

that his job performance was superior to that of the white casuals who were promoted, he presents

no evidence beyond his bare assertion to substantiate this claim. While Burks asserts that two

managers wrote positive reviews of him, he does not provide these reviews or any testimony from

the managers. As this court has explained, “the plaintiff’s denial of the defendant’s articulated

legitimate reason without producing substantiation for the denial is insufficient for a race

discrimination claim to withstand a motion for summary judgment.” Mitchell v. Toledo Hosp., 964

F.2d 577, 585 (6th Cir. 1992) (citations omitted).

12
 As noted above, Burks argues that Yellow Transportation’s proffered reasons for promoting

Burks did not constitute an “honest belief” that was “reasonably grounded on particularized facts that

were before [the employer] at the time of the employment action.” Smith, 155 F.3d at 806. Under

this court’s articulation of the so-called “honest belief rule,” “for an employer to avoid a finding that

its claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its

reasonable reliance on the particularized facts that were before it at the time the decision was

made.’” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (quoting Smith, 155 F.3d

at 806-07); see also Braithwaite, 258 F.3d at 494. Here, Yellow Transportation reasonably relied

on particularized facts when it determined that Burks would not be promoted to a full-time position:

Burks’s supervisors recounted in affidavits and depositions as to his specific instances of his poor

performance and poor attitude, and the comment sheet corroborated these claims. As in Wright,

Burks “has offered no evidence to indicate that [Yellow Transportation] made its decision on

grounds other than those offered.” Wright, 455 F.3d at 709.6

Burks also attempts to establish pretext by noting that the May 18-19 remarks on the

comment sheet were in “acute temporal proximity” to the day Burks requested drug screening.

Although temporal proximity is generally used to show a causal connection between protected

6
Burks attempts to call into question Yellow Transportation’s reliance on Burks’s comment
sheet, which he argues is “fishy” and “suspicious,” because we have no comment sheets with which
to compare Burks’s sheet. Derrick Edwards testified that comment sheets were kept for all casuals.
To the extent that Burks contends that Yellow Transportation should have produced other casuals’
comment sheets during discovery, this argument should have been made before the district court.
“If the Plaintiffs felt dissatisfied with the Defendant's discovery responses, they should have filed
a motion to compel in the district court. The Plaintiffs failed to do so. We will not consider
arguments not raised below.” Digital 2000, Inc. v. Bear Commc’ns, Inc., 130 F. App’x 12, 23 (6th
Cir. 2005) (citing St. Marys Foundry, Inc. v. Employers Ins. of Wausau, 332 F.3d 989, 995-96 (6th
Cir. 2003)).

13
activity and an unlawful employment action in the context of establishing a prima facie case for a

retaliation claim, see Asmo v. Keane, Inc., 471 F.3d 588, 593 (6th Cir. 2006), this court has noted

that temporal proximity can be used as indirect evidence to support a claim of pretext, at least in the

context of a retaliation claim, see id. at 598. Even if such temporal proximity can be used to support

an inference of pretext outside the context of a retaliation claim—Burks has presented no case law

to suggest that this is so—“temporal proximity is insufficient in and of itself to establish that the

employer’s nondiscriminatory reason for [its employment action] was in fact pretextual.” Skrjanc

v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001). Here, the proximity of Burks’s

drug test request to the May 18-19 remarks on the comment sheet is simply insufficient, in and of

itself, to establish pretext.7

It is true, as Burks notes, that “an employer's strategy of simply tossing out a number of

reasons to support its employment action in the hope that one of them will ‘stick’ could easily

backfire.” Smith, 155 F.3d at 809. Burks urges the court to disregard Yellow Transportation’s latter

two proffered nondiscriminatory reasons for failing to promote him—his poor performance and

attitude—because he has created an issue of fact with respect to Yellow Transportation’s first

proffered reason: his unavailability. Indeed, our court has acknowledged that “‘[t]here may be cases

in which the multiple grounds offered by the defendant for the adverse action of which the plaintiff

complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that

7
In the context of his “acute temporal proximity” argument, Burks also briefly contends that
Yellow Transportation’s continued employment of him after it had recorded his performance
problems on the casual comment sheet is also evidence of pretext. However, Yellow Transportation
asserts, quite logically, that it continued to call Burks to work because it needed workers to handle
the increasing freight volume and that its continued employment of Burks provided him with an
opportunity to improve his performance.

14
the plaintiff could withstand summary judgment.’” Id. (quoting Russell v. Acme-Evans Co., 51 F.3d

64, 70 (7th Cir. 1995)).8 However, the Smith court also noted, with approval, that the Seventh

Circuit has held that a plaintiff “‘must demonstrate that the employer’s reasons (each of them, if the

reasons independently caused [the] employer to take the action it did) are not true.’” Id. at 806

(quoting Kariotis v. Navistar Int’l Trans. Corp., 131 F.3d 672, 676 (7th Cir. 1997)) (emphasis in

original). Indeed, in Smith, the court concluded that although the plaintiff raised doubt as to one of

the employer’s two articulated nondiscriminatory reasons, such doubt was not sufficient to call into

question the employer’s other proffered reasons, as “[t]he two justifications and the sources from

which they were derived were separate in nature.” Id. at 809.

Here, the nondiscriminatory reasons articulated by Yellow Transportation are “separate in

nature.” See id. Yellow Transportation based its claim that Burks was unreliable on its logbook

records, which showed that Burks did not respond to work calls on a number of occasions. The two

other proffered reasons for failing to promote Burks—his poor performance and attitude—were

derived from the statements of Burks’s supervisors and the comment sheet. Nor is the character of

the first proffered reason so “fishy and suspicious” as to call into doubt the latter two proffered

reasons for failing to promote Burks. Burks only presented evidence that two of those calls—the

March 24 and March 25 calls—may not have occurred. Indeed, Burks’s deposition testimony,

although somewhat ambiguous, suggests that at the end of his employment, when he “quit,” he

stopped responding to work calls. In any case, Burks presented no evidence suggesting that the

August and September work calls did not occur. Thus, given that there is some reason to believe that

8
Under the mistaken belief that this court has not addressed this issue, Burks cites May v.
Pilot Travel Centers, LLC, No. 2:05-cv-918, 2007 WL 108001 (S.D. Ohio Jan. 5, 2007), for this
proposition.

15
Burks, on occasion, was in fact unavailable, Yellow Transportation’s proffered reason cannot be

deemed so “fishy and suspicious” that the company’s other reasons for not promoting Burks must

be disregarded.

Throughout his brief, Burks also attempts to revive an argument that was presented to and

rejected by the district court: that discovery omissions and misstatements made by Yellow

Transportation should be used to support the inference that the company was attempting to conceal

its discriminatory intent. As the district court noted, in Thurman v. Yellow Freight Systems, Inc., this

court suggested that certain discovery omissions may be evidence of an attempt to hide

discriminatory actions. See 90 F.3d 1160, 1167 (6th Cir. 1996). In Thurman, the defendant failed

to disclose a white comparator during discovery, and the existence of this individual was revealed

during cross-examination at trial. Id. at 1165. Here, however, as the district court explained, Yellow

Transportation’s discovery mistakes—such as its initial misidentification of the author of the May

18-19 record on the comment sheet—do not rise to the level of the misconduct articulated in

Thurman. The district court noted that Yellow Transportation corrected its mistakes during the

discovery period, and, moreover, some of the alleged problems could have been addressed if Burks

had brought them to the court’s attention during the discovery period. To be sure, as Burks notes,

the district court did not address Yellow Transportation’s misstatement before the EEOC. However,

the misstatement that Yellow Transportation made to the EEOC was not so egregious that it could

be used to support an inference that the company was hiding discriminatory actions. Yellow

Transportation submitted a list to the EEOC entitled “New Hire Regular, Full-time Dockworkers,

16
3/1/04 through 8/27/04,” but only listed employees hired in June and July. As Yellow

Transportation notes, this misstatement was not repeated during the present litigation.9

Burks has failed to present sufficient evidence that Yellow Transportation’s two remaining

proffered reasons for failing to promote him—his poor performance and attitude—had no basis in

fact, did not actually motivate Yellow Transportation’s decision, or were insufficient to motivate

the decision. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).

As the district court noted, the only remaining evidence Burks can offer in support of his case is that

Yellow Transportation promoted eleven white casuals with less seniority than he during May and

June. However, to create an inference of discrimination using this evidence, Burks must also show

that the white casuals Yellow Transportation promoted also had similar performance and attitude

problems. See id. (noting that a defendant’s proffered reasons may be deemed pretextual when

other employees were not treated in the same way, even though they engaged in substantially

identical conduct); see also, e.g., Brennan v. Tractor Supply Co., 237 F. App’x 9, 21-22 (6th Cir.

2007) (explaining plaintiff failed to demonstrate pretext in an age discrimination case where

plaintiff came forward with no evidence to show that younger employees who were promoted had

“the same or equivalent history of performance and attitude deficiencies as he did”). The mere fact

that these individuals were promoted instead of Burks does not, standing alone, present sufficient

9
Contrary to Burks’s assertions, nothing else in Yellow Transportation’s submission to the
EEOC appears to be false. The email from Steve Buckley to Pam Klocksiem, cited by Burks as
evidence that the EEOC submission was false, merely notes that Burks “was marked as unable to
contact as he did not return work calls after others were moved to probation instead of him.” This
email simply does not call into question the truthfulness of Yellow Transportation’s EEOC
submission, which relied on Burks’s comment sheet in its representation that Burks was not hired
full-time because he was unavailable for work and had performed poorly.

17
evidence to rebut Yellow Transportation’s proffered nondiscriminatory reasons for failing to hire

Burks.10

Finally, Burks appears to contend that the delay in forwarding his paperset and the late

administration of his drug test, when compared with the more prompt paperwork forwarding and

drug test dates of the eleven white casuals who were promoted in May and June, were sufficient to

rebut Yellow Transportation’s proffered reasons for not promoting Burks. However, Yellow

Transportation has never asserted that its failure to promote Burks was based on incomplete

paperwork. Moreover, this argument suffers from the same defect as the evidence that eleven white

individuals were promoted instead of Burks: Burks has not shown that these individuals were

similarly situated to him. See, e.g., Manzer, 29 F.3d at 1084; Brennan, 237 F. App’x at 21-22.

Conceivably, these individuals were given drug tests more promptly because they did not have the

same alleged performance and attitude problems as Burks. The evidence of Burks’s later drug

screen date and the possible delay in processing Burks’s paperset is simply insufficient to rebut

Yellow Transportation’s remaining proffered, and documented, reasons for failing to hire him: his

poor performance and attitude.

III.

The decision of the district court is affirmed.

10
The district court also noted that Burks failed to address Yellow Transportation’s promotion
of three African-American casuals during his term of employment. Burks does, however, note that
two of these individuals were promoted after Burks complained of discrimination on June 4 and the
remaining individual was promoted on the day he first worked as a casual; thus, these individuals
were outside of the scope of May and June hiring about which Burks complains.

18