Jarrett Hamilton v. General Electric Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0050p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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JARRETT HAMILTON,
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Plaintiff-Appellant,
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No. 08-5023
v.
,
>
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Defendant-Appellee. -
GENERAL ELECTRIC COMPANY,
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 06-00659—Thomas B. Russell, District Judge.
Argued: October 22, 2008
Decided and Filed: February 12, 2009
*
Before: MOORE, GRIFFIN, and BRIGHT, Circuit Judges.

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COUNSEL
ARGUED: Philip C. Kimball, Louisville, Kentucky, for Appellant. Bobby C. Simpson,
GE CONSUMER & INDUSTRIAL, Louisville, Kentucky, for Appellee. ON BRIEF:
Philip C. Kimball, Louisville, Kentucky, Edwin Sharp Hopson, Sr., WYATT,
TARRANT & COMBS, Louisville, Kentucky, for Appellant. Bobby C. Simpson, GE
CONSUMER & INDUSTRIAL, Louisville, Kentucky, for Appellee.
MOORE, J., delivered the opinion of the court, in which BRIGHT, J., joined.
GRIFFIN, J. (pp. 15-22), delivered a separate dissenting opinion.

*
The Honorable Myron H. Bright, Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.

1
No. 08-5023 Hamilton v. General Electric Company Page 2

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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant, Jarrett Hamilton
(“Hamilton”), appeals the district court’s grant of summary judgment to defendant-
appellee General Electric Company (“GE”). Hamilton, a former GE employee, alleges
that he was terminated in retaliation for having filed an age-discrimination claim against
GE with the Equal Employment Opportunity Commission (“EEOC”), and he appeals
dismissal of claims he brought under the Kentucky Civil Rights Act. Ky. Rev. Stat.
Ann. § 344.280(1).

We REVERSE the district court’s grant of summary judgment and REMAND
for further proceedings consistent with this opinion.

I. BACKGROUND1

Before he was terminated in August 2005, Hamilton had worked for GE in
Louisville, Kentucky over the course of three decades. He began working for GE in
1974, and except for a few periods when he was laid off for non-disciplinary reasons,
Hamilton held a variety of positions with GE. Prior to 2004, Hamilton’s disciplinary
record was relatively clean; he was disciplined only three times, twice because of
conflicts with coworkers and once for having beers in his car.2 In 2004, the relationship

1
Many material facts in this case are in dispute. This section will highlight these points of
contention, but because we are reviewing the grant of a motion for summary judgment to GE, we must
consider all of the facts in the light most favorable to Hamilton. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Blair v. Henry Filters, Inc., 505 F.3d 517, 520 n.1 (6th Cir. 2007).
2
There is some disagreement in the record as to the exact date of each of these incidents.
According to Hamilton’s deposition, he was suspended for a week in 1977 due to a fight with a coworker.
Joint Appendix (“J.A.”) at 80-81 (Hamilton Dep. at 40-41). Hamilton stated that he was next suspended
in 1992 after a disagreement over work responsibilities with another coworker. J.A. at 81-82 (Hamilton
Dep. at 41-42). Hamilton stated that his final suspension for having beers in his car occurred around 1997.
J.A. at 82 (Hamilton Dep. at 42). In his brief, however, Hamilton asserts that he was disciplined twice in
1977 and once in 1992. Hamilton Br. at 7. Regardless of whether the final incident occurred in 1992 or
1997, Hamilton’s disciplinary record had been clean for nearly a decade when the problems described infra
began in 2004.
No. 08-5023 Hamilton v. General Electric Company Page 3

between GE and Hamilton began to sour, and the series of events leading to this appeal
ensued.

On June 18, 2004, Frank Whitehouse (“Whitehouse”), Manager of Plant
Relations for GE, waited by the front gate of the plant looking for Hamilton.
Whitehouse asserts that he was waiting for Hamilton because, recently, GE managers
had been unable to locate Hamilton when he was supposed to be working. J.A. at 47
(Whitehouse Aff. at 1). Hamilton asserts that Whitehouse’s decision to wait for
Hamilton was “the beginning of Whitehouse’s campaign to ‘get’ Jarrett Hamilton.”
Hamilton Br. at 8. When Hamilton appeared at the gate, Whitehouse confronted him and
asked him to explain his absence. Hamilton stated that he had been on his 30-minute
lunch break. J.A. at 47-48 (Whitehouse Aff. at 1-2). However, after examining
Hamilton’s time card, Whitehouse determined that Hamilton had been gone for more
than 30 minutes, and, as a result of this violation of GE policy, GE suspended Hamilton
for a month.3 Id.

When Hamilton returned to work on July 24, 2004, another incident arose.
Hamilton asserts that when he got to work, he asked his supervisor to honor his medical
restrictions. J.A. at 77 (Hamilton Dep. at 37). Hamilton states that when he did this, his
supervisor suddenly started yelling at him and called for the guards to remove Hamilton.
Id. Hamilton says that he left the building rather than be removed by the guards and that
later, when he sought help at the union hall,4 he learned that GE had terminated him.
J.A. at 77-78 (Hamilton Dep. at 37-38). GE alleges that Hamilton was terminated in July
2004 because he was insubordinate and refused to follow the direction of his supervisor.
J.A. at 36 (Human Resources Manager Michael Luvisi Aff. at 2).

After this termination, the union intervened, and Hamilton, GE, and the union
signed a Last Chance agreement (“LCA”) on August 17, 2004. J.A. at 32 (LCA). This
LCA gave Hamilton his job back in exchange for his agreement that he would comply

3
In his brief, Hamilton contends that he never left GE’s premises that day and does not concede
that he was gone for more than 30 minutes. Hamilton Br. at 7-8.
4
Hamilton was a member of the International Union of Electrical Workers, Local 761.
No. 08-5023 Hamilton v. General Electric Company Page 4

with all of GE’s rules and that if he violated any, he would be subject to immediate
termination. Id. Hamilton also agreed that if, in the future, GE terminated him for
violating the LCA, “any grievance filed protesting the discharge [will] not be subject to
arbitration and that no legal action respecting said discharge will be filed.” Id. The LCA
was to be in effect for two years. Id.

For almost a year following the LCA, Hamilton continued to work for GE
without incident. On May 6, 2005, Hamilton voluntarily came in to work on Kentucky
Oaks Day, an informal holiday for many GE workers. Hamilton asserts that he
volunteered to work only because he was told that he would be sanding doors and would
not be required to work on the line. J.A. at 84 (Hamilton Dep. at 44). GE asserts that
Hamilton knew that he could be assigned to work anywhere within one of its plant
buildings that day. J.A. at 38 (Operations Leader Terry Bale Aff. at 1). During the work
day, a supervisor told Hamilton to take his lunch early and then to go work on the line.
J.A. at 38, 85 (Bale Aff. at 1; Hamilton Dep. at 45). From this point on, Hamilton’s and
GE’s accounts of the incident differ. Hamilton states that because he felt that he was not
required to comply with either of these orders, he asked to see a union steward. J.A. at
85-86 (Hamilton Dep. at 45-46). Hamilton explains that his supervisor then started
yelling at him, so he went to the line and began to work. Id. Hamilton asserts that while
he was working on the line, his supervisor called the guards and had them escort
Hamilton out of the building. Id.

The supervisor involved in the incident, Terry Bale (“Bale”), explains that after
he told Hamilton to work on the line, Hamilton asked for a union representative. J.A.
at 38-39 (Bale Aff. at 1-2). Bale states that he offered to go find a union representative
but that he ordered Hamilton to work on the line in the interim. Id. According to Bale,
Hamilton continued to refuse to work and walked away from Bale, so Bale called the
guards and had Hamilton removed from the plant. Id. When Hamilton returned to work
the next Monday he learned that he had been terminated. Hamilton Br. at 11. The
Union intervened again, and Hamilton was reinstated but given a 30-day suspension.
No. 08-5023 Hamilton v. General Electric Company Page 5

Id. On May 20, 2005, while serving this suspension, Hamilton filed an age-
discrimination charge against GE with the EEOC.

Hamilton testified that when he returned to GE in June of 2005, after filing his
EEOC complaint, his supervisors greatly intensified their scrutiny of his work and
harassed him more than they ever had before. J.A. at 113 (Hamilton Dep. at 91);
Hamilton Br. at 12. In the months between Hamilton’s return and his final termination,
the relationship between GE and Hamilton continued to be strained. On July 28, 2005,
Hamilton and his union representative met with Donald Blair (“Blair”) to discuss what
GE considered to be ongoing deficiencies in Hamilton’s job performance. J.A. at 40-41
(Blair Aff. at 1-2); J.A. at 42 (Blair Memo). GE conceives of this meeting as having
provided Hamilton with “a reprieve from the LCA.” GE Br. at 7. Hamilton insists that
during this time, GE was scrutinizing his behavior in an effort to create reasons to
discipline him. Hamilton Br. at 12. During this period, Hamilton overheard Bale and
another supervisor discussing and making light of Hamilton’s EEOC complaint. J.A. at
97-98 (Hamilton Dep. at 62-63).

The final event that led to this lawsuit occurred on August 9, 2005, when the line
that Hamilton was working on broke down, leaving Hamilton with no work. The parties
agree that when this happened, Hamilton went to the lunchroom to eat his lunch.
Hamilton Br. at 14; GE Br. at 7. The events that followed are highly contested.
According to Hamilton, after he had put his food in the microwave, Blair told him to
move some skids. J.A. at 90 (Hamilton Dep. at 55). Hamilton says that he agreed to do
the work, but that seconds later, while he was still putting his food away, Blair and Bale
came back into the lunchroom and told him to gather his belongings and leave the plant
immediately. Id. Hamilton asserts that he left the plant quietly and without swearing
or throwing things. J.A. at 92-94 (Hamilton Dep. at 57-59). According to Bale and
Blair, after the assembly line broke down, they found Hamilton in the lunchroom and
asked him to move the skids. J.A. at 39, 41 (Bale Aff. at 2, Blair Aff. at 2). Bale and
Blair assert that after a few minutes had passed, they returned to the lunchroom and
found Hamilton there, continuing to prepare his food. Id. Both Bale and Blair state that
No. 08-5023 Hamilton v. General Electric Company Page 6

after Bale suspended Hamilton and as they were escorting him out of the plant, Hamilton
swore at them and threw his badge down rather than handing it to either man. Id.

This incident led to Hamilton’s termination, and on August 15, 2005, GE sent
Hamilton a letter reading as follows:

Your employment with GE is being terminated as a result of your
unacceptable conduct and behavior in the workplace. Despite repeated
verbal and written warnings, you have failed to abide by the Appliance
Park Rules of Conduct and GE’s policies. . . . Subsequent to the [LCA]
you engaged in additional unacceptable conduct on more than one
occasion. You refused specific work directions from your supervisor,
and used unacceptable foul and abusive language.
J.A. at 34 (Whitehouse Ltr. to Hamilton).

On December 14, 2006, Hamilton filed suit against GE in state court, claiming
that GE had violated the Kentucky Civil Rights Act (“KCRA”) by terminating him in
retaliation for having filed an EEOC complaint. See Ky. Rev. Stat. Ann. § 344.280(1).
On December 26, 2006, GE filed a notice of removal to the district court based on
diversity jurisdiction. See 28 U.S.C. §§ 1332(a)(1); 1441. After discovery, GE moved
for summary judgment and argued that, by signing the LCA, Hamilton had waived his
right to bring this action and that his termination was the result of ongoing behavior
problems which had begun before he filed his EEOC complaint.

On November 29, 2007, the district court issued an opinion granting GE’s motion
for summary judgment. The district court concluded that the LCA did not bar
Hamilton’s suit. The district court granted GE’s motion for summary judgment because
it found that Hamilton could not establish a prima facie case of retaliatory firing because
he could not show that his EEOC complaint caused his termination. The district court
also noted that even if Hamilton could establish a prima facie case, Hamilton could not
show that GE’s proffered reason for firing him, ongoing behavior problems, was
pretextual.

On appeal, Hamilton argues that he provided enough evidence to establish a
prima facie case of retaliatory termination. Hamilton states that the evidence he
No. 08-5023 Hamilton v. General Electric Company Page 7

presented of temporal proximity between his EEOC complaint and his termination
accompanied by the fact that his bosses belittled his complaint and heightened their
supervision of him after he filed his EEOC complaint was sufficient to establish a causal
connection between his EEOC complaint and his termination. Hamilton also asserts that
he made a sufficient showing of pretext by “disputing the factual basis for the discharge
and showing that it was contrived to fire him.” Hamilton Br. at 17. In response, GE
argues that the district court correctly concluded that Hamilton failed to prove
retaliation. GE also asserts that the district court erred in its conclusion that the LCA
does not bar this action and urges us to conclude that Hamilton has waived his right to
bring this suit.

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Blair v.
Henry Filters, Inc., 505 F.3d 517, 523 (6th Cir. 2007). Summary judgment should be
granted only when “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). When we review a
motion for summary judgment, we must view all facts and inferences in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

B. Waiver Based on the LCA

On appeal, GE argues that by signing the LCA, Hamilton “waived his right to
proceed to court should GE in the future and during the term of the LCA determine that
he had violated the LCA and terminate his employment.” GE Br. at 22. We agree with
the district court’s conclusion that the LCA does not bar this action.

We have held that “[i]t is the general rule in this circuit that an employee may not
prospectively waive his or her rights under . . . Title VII.” Adams v. Philip Morris, Inc.,
67 F.3d 580, 584 (6th Cir. 1995). We further explained that:
No. 08-5023 Hamilton v. General Electric Company Page 8

An employer cannot purchase a license to discriminate. An employment
agreement that attempts to settle prospective claims of discrimination for
job applicants or current employees may violate public policy . . . unless
there were continuing or future effects of past discrimination, or unless
the parties contemplated an unequivocal, complete and final dissolution.
Id. at 585 (citation and footnote omitted).5 Though Hamilton does not bring any Title
VII claims and instead sues under the KCRA, we have held that “[t]he language of the
KCRA generally tracks the language of Title VII and, thus, ‘should be interpreted
consonant with federal interpretation.’” Morris v. Oldham County Fiscal Ct., 201 F.3d
784, 793 (6th Cir. 2000) (quoting Meyers v. Chapman Printing Co., 840 S.W.2d 814,
821 (Ky. 1992)).

GE asserts that Kentucky law permits waivers of statutory claims. However, the
two cases that GE cites to support this assertion concern agreements to settle existing
claims based on an identified violation rather than waivers of prospective claims based
on possible future violations. In Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 101
(Ky. 2003), the plaintiffs brought suit to recover for injuries that they suffered when a
certain pesticide was sprayed on their house. The agreement that the Kentucky Supreme
Court enforced was a settlement agreement in which the plaintiffs agreed to waive all
claims against the defendant relating to the specific incident that had occasioned the
plaintiffs’ suit. Id. at 101-02. In American General Life & Accident Insurance Co. v.
Hall, 74 S.W.3d 688, 689-90 (Ky. 2002), the plaintiff filed suit alleging that her boss had
sexually harassed her. The plaintiff also sought and received workers’ compensation
benefits based on her assertion that she suffered from psychological problems as a result
of this sexual harassment. Id. The Kentucky Supreme Court held that because the

5
We have “consistently upheld the validity of pre-dispute mandatory arbitration agreements,”
including those which “extend[] to agreements to arbitrate statutory employment discrimination claims.
McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004). However, such pre-dispute arbitration
agreements are enforceable only if they provide the employee “‘with an effective substitute for the judicial
forum to pursue her Title VII claims.’” Id. at 492 (quoting Morrison v. Circuit City Stores, Inc., 317 F.3d
646, 659 (6th Cir. 2003) (en banc)). GE does not argue that the LCA was an arbitration agreement, and
the LCA purports to bar arbitration and legal remedies. J.A. at 32 (LCA) (“If Mr. Hamilton is discharged
as a result of the Company’s determination that he has violated this Agreement, it is agreed that any
grievance filed protesting the discharge not be subject to arbitration and that no legal action respecting
said discharge will be filed.” (emphasis added)). Accordingly, the waiver in the LCA leaves Hamilton
with no forum in which to pursue his retaliatory-discharge claims, and it is not a valid waiver under our
precedent relating to waivers contained in arbitration agreements.
No. 08-5023 Hamilton v. General Electric Company Page 9

plaintiff chose to seek workers’ compensation benefits, she had waived her ability to sue
based on the same conduct of the employer. Id. at 692-93.

Both of the cases GE cites hold that when an individual is faced with a known
violation, he or she may be able to waive his or her ability to pursue further legal action
relating to that past violation. Neither case, however, stands for the proposition that,
under Kentucky law, an employee can prospectively waive statutory claims relating to
potential future violations. Hamilton signed the LCA nearly a year before he was
terminated, and the LCA does not represent his choice to forego future remedies based
on GE’s future statutory violations. Accordingly, because Kentucky law does not dictate
the contrary result, we conclude that Hamilton’s LCA does not bar him from pursuing
this legal action.

C. Retaliatory Termination

Hamilton’s KCRA claim that he was terminated in retaliation for filing an EEOC
claim is evaluated using the same standard that we apply to federal Title VII claims. See
Ford v. Gen’l Motors Corp., 305 F.3d 545, 552-53 & n.3 (6th Cir. 2002). When based
on circumstantial evidence, this claim is evaluated using the burden-shifting analysis
described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
801-05 (1973). See also Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003);
Ford, 305 F.3d at 552-53. The burden first falls on Hamilton who must establish a prima
facie case of retaliation by showing that: “(1) he . . . engaged in protected activity,
(2) the employer knew of the exercise of the protected right, (3) an adverse employment
action was subsequently taken against the employee, and (4) there was a causal
connection between the protected activity and the adverse employment action.”
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008). Once Hamilton has
made out a prima facie case, the burden shifts to GE “to produce evidence of a
legitimate, nondiscriminatory reason for its actions.” Id. If GE meets this burden,
Hamilton bears the burden of demonstrating that this legitimate reason is pretextual. Id.
No. 08-5023 Hamilton v. General Electric Company Page 10

1. Causal Nexus

The first three parts of the prima facie case are undisputed on appeal; Hamilton
has established that he filed an EEOC complaint alleging age discrimination, GE knew
about the complaint, and GE terminated his employment. GE contends, and the district
court agreed, that “Hamilton cannot establish any causal connection between his
termination and his filing an EEOC charge.” GE Br. at 11. We cannot agree.

In analyzing causation, the district court stated that “[u]nder Sixth Circuit
precedent, . . . temporal proximity is not enough to satisfy the causation element of
Plaintiff’s prima facie case.” J.A. at 25 (Dist. Ct. Op. at 11). We have recognized,
however, that in some cases temporal proximity may be sufficient to establish causation.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523-26 (6th Cir. 2008). In Mickey, we
held that “[w]here an adverse employment action occurs very close in time after an
employer learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection for the purposes of
satisfying a prima facie case of retaliation.” Id. at 525. Hamilton’s case, however, does
not rest on temporal proximity alone. Instead, Hamilton alleges that his bosses
heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter,
488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful
discharge by closely observing an employee and waiting for an ostensibly legal basis for
discharge to emerge). On a motion for summary judgment, we view the facts in the light
most favorable to Hamilton, and he has testified in his deposition that GE increased its
scrutiny of him after he filed his EEOC complaint. The combination of this increased
scrutiny with the temporal proximity of his termination occurring less than three months
after his EEOC filing is sufficient to establish the causal nexus needed to establish a
prima facie case.

The district court minimized the importance of the scrutiny that Hamilton alleges
because the district court found that from the time of the LCA on, GE understandably
supervised Hamilton’s work carefully. Hamilton does not argue that his work had not
been scrutinized before, but he states that the level of scrutiny increased greatly after he
No. 08-5023 Hamilton v. General Electric Company Page 11

filed the EEOC complaint. The fact that the scrutiny increased is critical. The district
court also emphasized Hamilton’s prior disciplinary history. Though this case includes
information about the pre-existing relationship between Hamilton and GE, we must
decide what made GE fire Hamilton when it did. GE did not terminate Hamilton until
after he filed an EEOC complaint alleging age discrimination. We hold that this
temporal proximity of less than three months combined with the assertion that GE
increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are
sufficient to establish the causation element of a prima facie case of retaliatory
termination.

GE asserts that after Hamilton filed his EEOC complaint in May 2005, GE had
cause to fire him in June 2005, but it chose not to, instead warning him and letting him
continue working until his termination in August 2005. GE argues that because it did
not fire Hamilton at the first opportunity that arose after he filed his EEOC complaint,
the choice to fire him must not have been retaliatory. GE asserts that its “favorable
treatment [i.e., its decision to give Hamilton another chance] dissolves any inference of
retaliatory motive on the part of GE.” GE Br. at 13. Were we to adopt GE’s position,
any employer could insulate itself from a charge of retaliatory termination by staging an
incident to display its purported “favorable treatment” and then waiting for a second
opportunity to terminate the employee. Accordingly, we refuse to adopt GE’s argument,
and we hold that an employer’s intervening “favorable treatment” does not insulate that
employer from liability for retaliatory termination.

2. Pretext

Because we conclude that Hamilton has established a prima facie case of
retaliation, we consider whether GE has satisfied its burden of producing a legitimate
nonretaliatory reason for terminating Hamilton. GE argues that it terminated Hamilton
because of “his persistent failure to abide by GE’s Rules of Conduct and the LCA.” GE
Br. at 14. Assuming that this explanation constitutes a valid reason for termination, we
next turn to the question of whether Hamilton has sufficiently established that this
No. 08-5023 Hamilton v. General Electric Company Page 12

proffered reason is pretextual. We hold that Hamilton has made a sufficient showing of
pretext and that summary judgment is not proper.

We have held that when an “employer . . . waits for a legal, legitimate reason to
fortuitously materialize, and then uses it to cover up his true, longstanding motivations
for firing the employee,” the employer’s actions constitute “the very definition of
pretext.” Jones, 488 F. 3d at 408. Hamilton has sufficiently alleged that this is exactly
what happened to him; GE increased its surveillance of his work after he filed an age-
discrimination complaint with the EEOC and then GE waited for an opportunity to fire
him. In addition to asserting that GE watched and waited for him to make a mistake,
Hamilton contests the factual basis for his termination. Hamilton’s supervisors at GE
suggest that they gave him minutes to put his lunch away before they returned to the
lunchroom and fired him for refusing to follow orders. They also assert that when they
returned to the lunchroom, Hamilton used profanity as they escorted him out. Hamilton
contests these facts and states that he was preparing to return to work as requested but
that only seconds passed before his supervisors returned to the lunchroom and fired him.
He also denies using profanity. When we view these facts in the light most favorable to
Hamilton, it is clear that there is a genuine issue of material fact. Based on the facts
Hamilton alleges, a reasonable fact-finder could determine that GE waited for, and
ultimately contrived, a reason to terminate Hamilton to cloak its true, retaliatory motive
for firing him.

GE asserts that “Hamilton’s subjective skepticism regarding the truth of GE’s
proffered reason does not raise a triable issue as to pretext” and cites Mitchell v. Toledo
Hospital, 964 F.2d 577, 584 (6th Cir. 1992), in support of this proposition. GE Br. at 17
& n.16. GE’s reliance on this case is misplaced. In Mitchell, the plaintiff was
terminated for “misuse of hospital property.” Id. at 580. The plaintiff admitted all of the
conduct underlying this termination but contended that her conduct did not constitute
“misuse of hospital property.” Id. at 580-81. This court noted that plaintiff did only two
things to rebut this proffered neutral reason for her termination: she testified that she
had heard that some other employees had done something allegedly similar but had not
No. 08-5023 Hamilton v. General Electric Company Page 13

been fired, and she denied that “her actions on December 6-9, 1988 constituted ‘misuse
of Hospital property.’” Id. at 584. This court determined that “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.” Id. at 585. Hamilton has done much more than deny GE’s reason for firing
him; he contests the facts underlying the incident that led to his termination and he
alleges that after he filed his EEOC age-discrimination complaint GE heightened its
supervision of him in an attempt to find a seemingly legitimate reason to fire him. The
plaintiff in Mitchell made no such showings.

Further, the holding in Mitchell must be read in light of the Supreme Court’s
subsequent holding in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000). In Reeves, the Supreme Court explained the standard that a court must apply
when it is reviewing a motion for judgment as a matter of law or a motion for summary
judgment:

In doing so, however, the court must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence. “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge.” Thus, although the
court should review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to believe.
That is, the court should give credence to the evidence favoring the
nonmovant as well as that “evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.”
Id. at 150-51 (citations omitted) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2529 at 300 (2d ed. 1995)). This reaffirmation of the familiar standard for review of
a grant of summary judgment reinforces the fact that Mitchell cannot apply to cases, such
as this one, in which the nonmoving party contests material facts. See Matsushita Elec.
Indus. Co., 475 U.S. at 587. Unlike the plaintiff in Mitchell, Hamilton has contested the
facts underlying his termination and has alleged a question of material fact sufficient to
defeat a motion for summary judgment.
No. 08-5023 Hamilton v. General Electric Company Page 14

Accordingly, we hold that Hamilton has met his burden of raising a genuine issue
of material fact regarding GE’s motivation for terminating him. Because we also
conclude that Hamilton has sufficiently alleged a causal connection between his
termination and his EEOC complaint, we reverse the district court’s grant of summary
judgment to GE.

III. CONCLUSION

For the reasons discussed above, we REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opinion.
No. 08-5023 Hamilton v. General Electric Company Page 15

_________________

DISSENT
_________________

GRIFFIN, Circuit Judge, dissenting. I respectfully dissent. I agree with the well-
reasoned opinion of the district court and would affirm.

I.

First, in this diversity of citizenship case governed by Kentucky state law, I agree
with the district court and the majority that the waiver signed by Hamilton as part of his
Last Chance Agreement was ineffective to bar this prospective civil rights retaliation
claim.

However, I respectfully dissent from the majority’s holdings that under Kentucky
law, the district court erred in ruling that Hamilton failed to sustain his burdens of
demonstrating the “causal connection” element of his prima facie case and establishing
that defendant’s legitimate reasons for discharge were pretextual.

II.

The events of August 9, 2005, which resulted in Hamilton’s termination, are
consistent with and are further illuminated by Hamilton’s well-documented and
undisputed pattern of defiance at General Electric Company (“GE”). In my view, his
termination was merely the culmination of his serious disciplinary history.

In 2004, a year before Hamilton filed his age discrimination charge, various
managers reported that they were unable to locate Hamilton at work on several
occasions. As a result, Frank Whitehouse, manager of plant relations, waited by the
front gate on June 18, 2004, in an attempt to find him. On that day, electronic records
confirm that Hamilton clocked out at 7:54 AM and returned over sixty minutes later.
Because lunch breaks at GE are thirty minutes, Whitehouse questioned Hamilton about
his whereabouts. Hamilton explained that he had taken his thirty-minute lunch break but
could not account for the additional thirty minutes. GE then suspended Hamilton
No. 08-5023 Hamilton v. General Electric Company Page 16

without pay for thirty days because he violated its written rule forbidding employees
from leaving work without permission.

When Hamilton returned to work on July 24, 2004, he refused to perform
assigned jobs. As a result, human resources manager Michael Luvisi terminated
Hamilton for insubordination.

Fortunately for Hamilton, the union intervened on his behalf. It negotiated a Last
Chance Agreement, which Hamilton signed on August 17, 2004. Under the Last Chance
Agreement, Hamilton conceded that GE’s decision to terminate him was “proper and for
just cause.” GE agreed to reinstate Hamilton’s employment without back pay in
exchange for Hamilton’s agreement to “strictly adhere” to the terms and conditions
stated in the Last Chance Agreement, including the requirement that he comply “with
all of the Appliance Park Rules of Conduct.” It specifically warned Hamilton that “[a]ny
violation of the Rules of Conduct will result in immediate discharge . . . .”

Despite the Last Chance Agreement, less than a year later, Hamilton again
behaved insubordinately toward GE management. On May 6, 2005, manager Terry Bale
directed Hamilton and another employee to take their lunch breaks early so that they
would be available to work on an assembly line. When Hamilton refused to obey Bale’s
directive that he report to his assigned work station, Bale called security guards who
escorted Hamilton off GE property.

Although GE determined that Hamilton’s conduct on May 6, 2005, violated the
Last Chance Agreement and made the preliminary decision to terminate him, the union
again intervened on Hamilton’s behalf. At the union’s request, GE agreed to place
Hamilton on unpaid leave for thirty days instead of discharging him. Significantly, it
was while Hamilton was serving that unpaid thirty-day suspension that he filed his age
discrimination charge with the EEOC on May 20, 2005.

On July 28, 2005, Hamilton’s supervisor, Donald Blair, convened a meeting with
Hamilton and the union to discuss his continuing concerns about Hamilton’s alleged
refusal to follow instructions, tardiness at the start of his shift, unauthorized breaks, and
No. 08-5023 Hamilton v. General Electric Company Page 17

routine absences from his work area. Blair required that Hamilton report to him every
morning for daily instructions and reminded him to adhere to his scheduled break times
and GE’s rules of conduct.

The lunch break incident on August 9, 2005, which led to Hamilton’s discharge
was merely another link in the long chain of Hamilton’s documented challenges to his
employer’s authority. On that day, Hamilton’s supervisors once again attempted
unsuccessfully to find him. It was only when they could not locate him that they
searched for and found him in the lunch room.

At oral argument, Hamilton’s counsel conceded that his client’s lunch break on
August 9, 2005, was “unauthorized.” Moreover, no reasonable jury would believe
Hamilton’s contention that during his unauthorized lunch break, he timely complied with
his supervisor’s instructions to move skids. According to Hamilton, Blair gave him only
a few “seconds” to begin the task, and while he was still putting away his food, Blair and
Bale returned to the lunch room and ordered him to leave the plant. Blair and Bale
contend that they allowed Hamilton several minutes to put away his lunch before they
returned. Obviously, the time it requires for a supervisor to leave the lunch room in the
large plant and then return is more than a few “seconds.” Under these circumstances,
Hamilton’s failure to comply with Blair’s orders clearly constituted refusal to comply
with “specific work directions from your supervisor” as referenced in defendant’s
August 15, 2005, termination letter.

III.

The majority acknowledges that “the burden first falls on Hamilton” to “establish
a prima facie case of retaliation by showing that: . . . there was a causal connection
between the protected activity and the adverse employment action.” It then incorrectly
concludes that Hamilton met his burden of proving the “causation” element based on two
factors: (1) the temporal proximity between his filing of the EEOC charge, and (2) GE’s
alleged “heightened scrutiny” of him after he filed the charge. In relying on these
considerations, the majority ignores the undisputed circumstances leading to Hamilton’s
termination and his well-documented pattern of insubordinate behavior at GE.
No. 08-5023 Hamilton v. General Electric Company Page 18

The majority’s reliance on temporal proximity as establishing the causation
element of the prima facie case is untenable. On at least three occasions in the year
preceding his filing of the charge, GE suspended or terminated Hamilton. He signed the
Last Chance Agreement before he filed his EEOC charge. In fact, Hamilton filed his
charge while serving an unpaid, thirty-day suspension for his insubordination on May
6, 2005. Thus, he was already on the brink of termination when he complained about
discrimination and when GE discharged him for the last time.

In a similar case in which the plaintiff employee had a history of disciplinary
problems that preceded the filing of the discrimination charge, the Eighth Circuit
rejected the employee’s attempt to immunize herself from termination by complaining:

The wisdom of [the] rule [that temporal proximity, by itself, is not
enough to present a genuine issue of material fact in a retaliation case]
is evident in a case such as this, where the employee was accused of
insubordination before she notified the employer of her protected
activity. Insubordinate employees may not insulate themselves from
discipline by announcing an intention to claim discrimination just before
the employer takes action. Evidence that the employer had been
concerned about a problem before the employee engaged in the protected
activity undercuts the significance of the temporal proximity.
Hervey v. County of Koochiching, 527 F.3d 711, 723 (8th Cir. 2008) (holding that the
employer’s adverse action against the plaintiff “was a logical consequence of [the
plaintiff’s] pre-existing disciplinary problems,” and the plaintiff “cannot create a
submissible case of unlawful retaliation by interjecting her announcement of a
discrimination claim in the middle of a previously scheduled meeting to discuss her
absences from work.”) (internal quotations and citations omitted). Other decisions have
recognized the same. See, e.g., Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d
Cir. 2001) (holding that the plaintiff failed to establish the causation element of the
prima facie case for retaliation where “an extensive period of progressive discipline”
began five months before the plaintiff filed his EEOC charges); Zenni v. Hard Rock Cafe
Int’l, Inc., 903 F. Supp. 644, 655-56 (S.D.N.Y. 1995) (holding that the plaintiff did not
establish the causation element of the prima facie case for retaliation where he
No. 08-5023 Hamilton v. General Electric Company Page 19

committed infractions and the employer negatively evaluated him before he complained
about alleged discrimination); Lawson v. Getty Terminals Corp., 866 F. Supp. 793, 804
(S.D.N.Y. 1994) (holding that the plaintiff failed to establish the causation element of
the prima facie case for retaliation where his employer informed him that it was
dissatisfied with his performance and verbally counseled him about his failure to
perform required job duties before he complained about alleged discrimination).

IV.

The majority also incorrectly relies on GE’s alleged “heightened scrutiny” of
Hamilton after he complained as establishing the causation element. GE was entitled to
heavily scrutinize and discipline Hamilton, an employee with a history of
insubordination. Cf. Conley v. City of Findlay, No. 06-4664, 266 F. App’x 400, 409-10
(6th Cir. 2008) (unpublished) (affirming district court’s grant of summary judgment in
favor of the employer where the plaintiff’s “entire retaliation argument is dedicated to
challenging the district court’s conclusion that an employer may discipline an employee
that it views as being more culpable in a harsher manner than it disciplines an employee
that it deems to be less culpable.”).

Moreover, contrary to the majority’s observation that “[t]he fact that the scrutiny
increased [after Hamilton filed the charge] is critical” and permits an inference of
retaliation, the majority again ignores a crucial fact – the alleged “heightened scrutiny”
began after Hamilton returned from the thirty-day unpaid suspension coinciding with the
filing of his discrimination charge. Surely an employer may more closely observe an
employee who is returning from sanction, particularly one like Hamilton, who was
working under a Last Chance Agreement and had been suspended and terminated in the
past. Indeed, Hamilton identifies no other similarly situated, non-complaining employee
whom GE treated differently. See Evans v. Prospect Airport Servs., Inc., 286 F. App’x
889, 895 (6th Cir. 2008) (unpublished) (stating that “[b]eyond temporal proximity, other
indicia of retaliatory conduct would include evidence that the plaintiff was treated
differently . . . than similarly situated employees who had not exercised Title VII rights
No. 08-5023 Hamilton v. General Electric Company Page 20

. . . .”) (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th
Cir. 1990)).

The Kentucky legislature certainly did not intend the anti-retaliation provision
of the Kentucky Civil Rights Act to preclude employers from supervising their
employees, particularly insubordinate ones. The majority’s holding merely encourages
sanctioned employees like Hamilton to file discrimination charges, thereby obtaining
“instant immunity” from their employers’ supervision and punishment. Contrary to the
majority’s sweeping construction of the anti-retaliation provision, the statute is designed
to prevent employers from taking adverse action against employees who engage in
protected conduct, not to function as a blindfold or “gag order” on an employer’s ability
to properly supervise its employees, particularly employees who have decisively
demonstrated that they require closer supervision.

Under these facts, no reasonable jury could find that Hamilton met his burden of
establishing a prima facie case for retaliation, and I respectfully dissent from the
majority’s ruling that he did.

V.

Next, assuming that Hamilton met his burden of establishing a prima facie case
for retaliation, it was also his burden to demonstrate that GE’s articulated legitimate,
non-retaliatory reasons for terminating him were pretexts for retaliation. Niswander v.
Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008). The majority correctly assumes
that GE’s explanations for firing Hamilton – his persistent failure to abide by its rules
of conduct and the Last Chance Agreement – were legitimate and non-retaliatory.
However, it then concludes erroneously that a reasonable jury could find that GE’s
articulated reasons were pretexts for retaliation, holding that sufficient facts suggest that
GE waited for a “legal, legitimate reason [to fire him] to fortuitously materialize” and
then used that reason “to cover up [its] true, longstanding motivations” of retaliation.

Again, the majority ignores Hamilton’s significant disciplinary history at GE,
which long preceded the filing of his discrimination charge. When he filed his charge,
No. 08-5023 Hamilton v. General Electric Company Page 21

Hamilton had nearly exhausted his “nine lives” at GE. GE did not need to wait for legal,
legitimate reasons to “fortuitously materialize” in order to fire Hamilton because he
already proved on numerous occasions that he was more than willing to assist.

The August 9 infraction was representative of and consistent with his past
behavior at GE: for whatever reason, he did not respect GE’s rules or the authority of
his supervisors or managers, and he paid the price by losing his job. The facts in this
case are thus similar to those in Conley, in which we held that the employer’s decision
to terminate an employee for causing wastewater spills on three separate occasions was
not a pretext for discriminating against her as a matter of law, even though she argued
that the third spill was insufficient to justify her termination because it was of “minimal
quantity.” Conley, 266 F. App’x at 406-07. In Conley, we recognized that the third spill
which immediately preceded the plaintiff’s termination was merely one error among
several made by the plaintiff, and that the City of Findlay, Ohio, lawfully discharged her
“because of her unacceptable job performance in all three spills.” Id. at 406.1

Here, as in Conley, Hamilton’s final infraction on August 9 merely reinforced the
accuracy of the label GE had already assigned to him, which in the words of Logan
Pearsall Smith, was “plainly printed on the bottled essence of [his] past behavior.”
Accordingly, because no reasonable juror could find that GE’s explanation for
terminating Hamilton – his persistent and pervasive violation of its rules – was a pretext
for retaliating against him, summary judgment was proper. See Blair v. Henry Filters,
Inc., 505 F.3d 517, 524 (6th Cir. 2007) (stating that “the plaintiff must identify evidence
from which a reasonable jury could conclude that the proffered reason is actually a
pretext for unlawful discrimination.”); Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d
357, 371 (6th Cir. 2007) (same); Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.
2001) (stating that a “case should be dismissed” where “no reasonable juror could find
that the employer’s adverse employment action was pretextual.”).

1
Unpublished opinions of this court are not precedentially binding under the doctrine of stare
decisis but may be considered for their persuasive value. United States v. Sanford, 476 F.3d 391, 396 (6th
Cir. 2007).
No. 08-5023 Hamilton v. General Electric Company Page 22

VI.

For these reasons, the district court correctly granted summary judgment in favor
of GE on Hamilton’s retaliation claim, and I would affirm that judgment. I therefore
respectfully dissent.