NOT RECOMMENDED FOR PUBLICATION File Name: 25a0451n.06
Case No. 24-1584
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Oct 06, 2025 ) DANIEL WELCH, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF HEART TRUSS & ENGINEERING CORP., ) MICHIGAN Defendant-Appellee. ) ) OPINION
Before: COLE, STRANCH, and READLER, Circuit Judges.
READLER, Circuit Judge. Heart Truss & Engineering Corp. fired Daniel Welch, believing
that Welch was responsible for painting graffiti on trusses that were later delivered to the
company’s customers. Welch, however, viewed Heart Truss’s justification for his termination as
pretext for disability-based discrimination and workers’ compensation retaliation, prompting this
lawsuit. The district court disagreed and granted summary judgment to Heart Truss. We affirm.
I.
For years, Welch worked as a delivery driver for Heart Truss. In that role, Welch
transported stacks of trusses from Heart Truss’s manufacturing facility to construction sites, where
the trusses were used to support the roofs of residential and commercial structures. Welch, upon
arriving at a job site, was required to climb onto the bed of his truck to secure straps around each
truss before it was lifted from the truck bed by crane. No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
Unfortunately, Welch’s work came with some risk of injury. Case in point, in 2017, Welch
injured his left knee when he fell off a load of trusses. About two years later, he aggravated the
injury. This time, he filed a workers’ compensation claim, which an independent clinic later
denied. Late in 2020, Welch injured his ankle, filed another claim, and was granted paid medical
leave to recover from the ensuing surgery. He returned to work in March 2021.
At that point, Welch’s still-untreated knee injury caused him to walk with a limp,
something his supervisor Bryan Johnson noticed and asked him about. According to Johnson’s
memorial of the conversation, Welch complained to Johnson about “how the company screwed
him” on his left-knee injury by orchestrating the denial of his workers’ compensation claim and
relayed that “it hurt to climb up and down on the loads” with the “3 tears in his meniscus.” Mar.
26, 2021, Letter, R. 25-4, PageID 214. Welch later told Johnson that he had found a way to do his
job without climbing but that “one day (coming soon)” he would be unable to do his job at all,
cryptically adding, “then we will see what happens.” Id. Welch denied saying these things, instead
claiming that he merely told Johnson he “still had an injury and . . . needed to go see [his] doctor.”
Welch Dep., R. 25-1, PageID 191. Based on Johnson’s written account of the conversation, plant
manager Tom Gustafson reassigned Welch from driving to working on the factory production
line—a role that did not require climbing but also paid less than the delivery driver role. Gustafson
and Welch had two conversations over the transfer, which Welch surreptitiously recorded on his
cellphone.
Shortly thereafter, graffiti started appearing on loads of trusses that were shipped to
customers, including smiley faces (some adorned with devil horns) and pairs of circles with dots
in the middle that some customers interpreted to be depictions of female breasts. Upset at the
defacement, customers complained. In one instance, a customer called Heart Truss to ask whether
2 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
the company considered it “appropriate [to] sen[d] product[s] to their home to sit in their front
yard with a pair of boobs on the front.” Gustafson Dep., R. 26-8, PageID 427.
Deeming this a “very bad look for the company,” id., PageID 429, Gustafson immediately
“started to think about [discharging] whoever [was] doing” the graffiti, id., PageID 419. And after
finding more defaced trusses still at the factory, Gustafson concluded that the amount and nature
of the graffiti warranted discharge. So, he turned to finding the culprit, who had to be someone at
the production facility, given what Gustafson had learned. The company’s production facility is
staffed with two successive shifts, the first of which (including Welch) had left for the day when
Gustafson began his investigation. Thus, Gustafson began with the second shift, ascertaining that
none of those workers was responsible for the graffiti. The next morning, April 15, 2021,
Gustafson instructed first-shift supervisor Tim Oberlin to see whether one of his workers was the
artist, noting that he planned to have the culpable employee “discharged.” Id., PageID 420.
According to Oberlin, he then went to the production yard and asked employee Ryan
Wixson if he had painted the graffiti. Wixson replied that he had not. Welch, who was within
earshot, “spoke up and said, ‘I did it,’” downplaying the offense by asking, “[W]hat’s it hurting?”
Oberlin Aff., R. 25-12, PageID 253. During litigation, Wixson corroborated Oberlin’s account.
Welch, however, told a different story. He claimed that Oberlin merely “showed [the first-shift
workers] pictures of trusses” and said, “Whoever is doing this, just stop,” at which point Welch
did not confess but merely commented, “[W]hat about the graffiti that’s all over the door on the
side of the building?” Welch Dep., R. 25-1, PageID 197.
Following this exchange, Oberlin returned to Gustafson’s office, where he told Gustafson
that Welch had confessed. Gustafson immediately informed his superior that he was planning to
terminate Welch for defacing company property. To Gustafson’s mind, Welch had violated Shop
3 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
Rule 28, which authorized discipline of “up to discharge” for a first-time offender caught
“[d]efacing company . . . property.” Shop Rules and Penalties, R. 26-1, PageID 323.
Later that day, Welch claimed to have experienced yet another injury, this time to his right
knee, while working on the production line. When Welch requested medical care, Gustafson
arranged transportation to the workers’ compensation clinic. Following an evaluation, Welch was
released to return to work. When he did, he was informed of his termination.
Welch later filed suit against Heart Truss for wrongful demotion and wrongful termination,
arguing that his transfer and firing were the product of illegal discrimination and retaliation. The
district court granted Heart Truss summary judgment on the wrongful termination claims.
Following a settlement of his wrongful demotion claims, Welch appealed the district court’s
resolution of his wrongful termination claims.
II.
We review de novo the grant of summary judgment to Heart Truss, drawing all reasonable
inferences in Welch’s favor but affirming if Heart Truss shows that there was no genuine dispute
of material fact and that it was entitled to judgment as a matter of law. Colson v. City of Alcoa, 37
F.4th 1182, 1186 (6th Cir. 2022). Welch asserted disability-based discrimination claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101, and Michigan’s analogous Persons with
Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101, which generally incorporates the same
legal standards as the ADA, Hrdlicka v. Gen. Motors, LLC, 63 F.4th 555, 566 (6th Cir. 2023)
(explaining that the two are “generally analyzed identically.” (quoting Henderson v. Chrysler Grp.,
LLC, 610 F. App’x 488, 497 (6th Cir. 2015))). According to Welch, Heart Truss violated these
statutes by terminating him based on his long-term left-knee injury. Welch also sued for retaliation
under Michigan’s Worker’s Disability Compensation Act of 1969, Mich. Comp. Laws § 418.301,
4 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
claiming that he was fired in retaliation for requesting medical care after his April 15 injury, the
day he was terminated.
On each claim, Welch proffered no direct evidence that Heart Truss’s alleged illegal
motive—discrimination or retaliation—caused his termination. Thus, he must prove his claims
through circumstantial evidence, a task that invokes the McDonnell Douglas framework. See A.C.
ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013) (citing DiCarlo v.
Potter, 358 F.3d 408, 415 (6th Cir. 2004)); Cuddington v. United Health Servs., Inc., 826 N.W.2d
519, 525–26 (Mich. Ct. App. 2012) (per curiam). Under that familiar rubric, Welch must present
a prima facie case of discrimination or retaliation. A.C. ex rel. J.C., 711 F.3d at 697. To establish
a prima facie case of disability discrimination, Welch must show that (1) he is disabled, (2) he was
otherwise qualified for his position, with or without a reasonable accommodation, (3) he suffered
an adverse employment decision, (4) Heart Truss knew or had reason to know of his disability,
and (5) his position remained open while Heart Truss sought other applicants or replaced him.
Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (stating prima facie case under the
ADA); Hrdlicka, 63 F.4th at 566 (using the same framework for disability discrimination claims
under the ADA and the PWDCRA). And to establish a prima facie case of retaliation under
Michigan’s Workers’ Disability Compensation Act, Welch must show that (1) he asserted his
worker’s compensation rights, (2) Heart Truss laid off or failed to recall Welch, (3) Heart Truss’s
stated reason for its actions was a pretext, and (4) Heart Truss’s true reason for firing Welch was
in retaliation for his having filed a worker’s compensation claim. MacDonald-Bass v. J.E. Johnson
Contracting, Inc., 493 F. App’x 718, 727 (6th Cir. 2012) (per curiam) (citing Chiles v. Mach. Shop,
Inc., 606 N.W.2d 398, 404 (Mich. Ct. App. 1999) (per curiam)). If Welch establishes a prima
5 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
facie case, the burden shifts to Heart Truss to provide a legitimate reason for firing him. Id. And
if Heart Truss does so, Welch must show this reason to be pretextual. Id.
For purposes of its summary judgment motion, Heart Truss concedes that Welch has
established a prima facie case of discrimination and retaliation. Welch does not contest that Heart
Truss has proffered a legitimate, non-discriminatory reason for his termination. Therefore, for
argument’s sake, we will assume that McDonnell Douglas’s first two steps have been satisfied,
meaning that, like the parties, we focus on the last step: whether Welch has put forward enough
evidence from which a jury may reasonably reject Heart Truss’s explanation that it fired Welch
for defacing trusses, and conclude that its proffered reason was a pretext for discrimination or
retaliation. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994),
overruled on other grounds by, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009); see also Miles
v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020) (“To satisfy her burden and
survive summary judgment, [a plaintiff] must produce sufficient evidence from which a jury could
reasonably reject [the employer’s] explanation of why it fired her.” (citation modified)). To do so,
Welch would need to do more than “simply” ask “the jury . . . to refuse to believe [Heart Truss’s]
explanation.” Manzer, 29 F.3d at 1083 (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,
254 (1981)). Rather, he must present “a sufficient basis in the evidence” to find pretext. Id.
Welch arranges his evidence on this front into three categories. He argues that Heart
Truss’s explanation was neither (1) based on facts, (2) a sufficient basis for his termination, nor
(3) the likelier actual motivation as compared to discrimination and retaliation. We take each of
these in turn.
A. Welch first argues that Gustafson had no factual basis for believing Welch to be the
graffiti artist. To prevail here, Welch must overcome Heart Truss’s assertion of the “honest belief”
6 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
rule, which prevents a finding of pretext, regardless of whether Welch was the actual culprit, if
Gustafson “reasonably and honestly relie[d] on particularized facts” in concluding that he was.
Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009). And the record indicates that
Gustafson reasonably and honestly relied on particularized facts when terminating Welch’s
employment. Recall the steps he took to identify the culprit after learning about the graffiti:
finding more examples of graffiti, figuring out that the graffiti must have originated at the factory,
eliminating the second shift from suspicion, and assigning Oberlin to investigate the first shift.
The next data point he received was Oberlin’s report of Welch’s confession. From this
investigation, Gustafson formed the honest belief that Welch was responsible.
Welch counters that this belief, while honest, was nonetheless unreasonable because
Gustafson accepted Oberlin’s word without interviewing other witnesses or cross-referencing the
graffitied job numbers to Welch’s assigned loads. Perhaps, as Welch suggests, Gustafson could
have done more to confirm Welch’s guilt. But the honest belief rule does not require an “optimal”
investigation that “left no stone unturned.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th
Cir. 2012) (citation modified). Rather, we ask only if Gustafson’s decision was “reasonably
informed and considered.” Id. (citation modified). And here, we agree that it was, given that
Welch has produced no evidence that Gustafson had reason to disbelieve Oberlin’s report.
Pressing this point further, Welch, citing Yazdian v. ConMed Endoscopic Technologies,
Inc., 793 F.3d 634 (6th Cir. 2015), asserts that a company may not invoke the honest belief rule
where it bases a termination solely on a supervisor’s account of events. But the court in Yazdian
found that the company there acted unreasonably in relying solely on a supervisor’s statement
because the company had notice of two reasons to doubt the supervisor’s word—the employee’s
request to present his side of the story and his allegation that the reporting supervisor discriminated
7 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
against him. Id. at 654. In view of this live dispute over the supervisor’s veracity and impartiality,
firing the employee without any follow-up was deemed unreasonable. Id. But there is no evidence
in the record that Gustafson had reason to doubt the accuracy or objectivity of Oberlin’s statements,
making his reliance reasonable.
B. Welch next argues that the graffiti was not a sufficient reason for Gustafson to fire him,
as others engaged in the same conduct, yet were not terminated. For this type of pretext argument,
Welch ordinarily must provide evidence that “other employees, particularly employees not in the
protected class”—who were not disabled or who had not sought protected medical care—“were
not fired even though they engaged in substantially identical conduct.” Manzer, 29 F.3d at 1084.
In making this comparison, we “focus on the severity of the differently treated employees’
actions,” an inquiry that sweeps in both the “company rule or policy” violated and “the actual and
potential consequences of the employee’s actions.” Jackson v. VHS Detroit Receiving Hosp., Inc.,
814 F.3d 769, 780 (6th Cir. 2016) (citation modified).
Welch identifies one employee who violated Rule 28 without being terminated: Mike
Reyes, who spray-painted the inside of a forklift and received a two-day suspension. The forklift,
however, was only used inside Heart Truss’s plant. The graffiti marks on the trusses, on the other
hand, were seen by customers as well as any drivers who passed the company truck during
transportation. The resulting effect on Heart Truss’s reputation was an “actual . . . consequence[]”
of Welch’s graffiti that differentiated the “severity” of that offense from Reyes’s forklift artwork.
See Jackson, 814 F.3d at 780 (citing Clayton v. Meijer, Inc., 281 F.3d 605, 612 (6th Cir. 2002)).
Nor is it enough for Welch to assert more generally that graffiti was a “common” problem
at Heart Truss. Appellant Br. 36. True, it seems that other, unknown culprits defaced trusses prior
to Welch’s termination. But Welch has proffered no evidence that any employee who was caught
8 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
graffitiing trusses ever avoided termination. And as Welch did not provide any details about the
prior truss graffiti, we have no comparator to consider. In short, with Welch lacking evidence that
any employee committed “substantially identical” misconduct, he has failed to prove pretext under
this rubric. See Manzer, 29 F.3d at 1084.
C. We commit the bulk of our analysis to Welch’s third and final claim, namely, that Heart
Truss’s stated reason for his termination, even if true and even if a sufficient basis for firing, was
not its actual motivation. To succeed on this argument, Welch must first “admit[]” (for argument’s
sake) that he drew the eyes, devil horns, and breasts seen by Heart Truss’s customers and that this
conduct “could [have] motivate[d]” the company to fire him. Smith v. Leggett Wire Co., 220 F.3d
752, 759 (6th Cir. 2000). Then, he must present evidence that could convince a jury it is still
“more likely,” under the “sheer weight of the circumstantial evidence,” that Heart Truss fired him
based on “an illegal motivation” tied to his disability or workers’ compensation requests rather
than his “admit[ted]” fireable misconduct. Manzer, 29 F.3d at 1084. To this end, Welch offers
several pieces of circumstantial evidence purporting to make discrimination or retaliation the
likelier explanation here than ordinary workplace discipline.
1. Welch begins by arguing that the reason for his firing “subtly changed over time.”
Appellant Br. 38. To be sure, “shifting termination rationales” may suggest that a legitimate reason
given for one’s termination during later litigation over that termination “may not have been the
true motivation” for the termination. Miles, 946 F.3d at 890. But “providing additional, non-
discriminatory reasons that do not conflict with the one stated at the time of discharge does not
constitute shifting justifications.” Id. at 891 (citation modified). And the evidence shows that is
exactly what Heart Truss did. Welch’s termination notice credited his firing to “Rule # 28”
“Defacing company property.” Reprimand, R. 25-17, PageID 271. The company’s EEOC
9 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
position statement and its subsequent litigation position added detail to those allegations. But there
is no evidence in the record that the company ever retreated from its position that the Rule 28
violation was itself sufficient to justify Welch’s termination. Put differently, that Heart Truss’s
factual support for Welch’s firing grew more specific over time does not show that Heart Truss
changed or hid its true motives underlying that decision.
2. Next, Welch suggests that Heart Truss failed to follow its own policies as it terminated
Welch’s employment. That manner of shortcoming, however, “is generally insufficient to support
a finding of pretext” unless the company’s policy was not applied “uniformly” across employees.
Miles, 946 F.3d at 896 (citation modified). Welch has not demonstrated as much. And even
assuming an isolated failure to follow company termination policies could demonstrate pretext,
Welch similarly has shown none. Gustafson did not ignore the Shop Rules’ instruction to account
for “the nature and frequency of the violations” by terminating Welch for a first-time Rule 28
offense. See Shop Rules and Penalties, R. 26-1, PageID 321. To the contrary, Gustafson weighed
those very considerations—he relied on “[t]he severity of what [Welch] had done” to select
discharge as the appropriate discipline. Gustafson Dep., R. 26-8, PageID 437. Nor did Gustafson
violate Rule 34, which instructs Heart Truss to forgive and remove discipline from an employee’s
file after one year. Gustafson testified that Welch’s prior discipline played no role in his decision.
In response, Welch points to the company’s EEOC position statement, which referenced the
forgiven disciplinary incidents. But the company’s owner (who prepared that filing) was not
involved in firing Welch. So, that document’s reference to prior discipline does not establish that
Gustafson violated company policy, nor does it establish that Heart Truss’s proffered reason was
pretextual. Roberts v. Principi, 283 F. App’x 325, 332 (6th Cir. 2008) (citing Bush v. Dictaphone
Corp., 161 F.3d 363, 369 (6th Cir. 1998) (“[S]tatements by nondecisionmakers, or statements by
10 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff’s
burden . . . of demonstrating animus.”)).
3. Welch next asserts that Gustafson showed hostility towards Welch’s protected
characteristics—his disabled status and his history of requesting workers’ compensation—during
the pair of recorded conversations the two had at the time of Welch’s demotion (about two weeks
before his termination). Hostility can be shown through repeated inflammatory comments
targeting the protected trait. See, e.g., Griffin v. Finkbeiner, 689 F.3d 584, 589–90, 596 (6th Cir.
2012) (discussing race-based comments). But the comments Welch points to here are not
inflammatory comments targeting Welch’s protected traits—his 2017 knee injury, his aggravation
of that injury in 2019, his filing of a worker’s compensation claim in 2019, or his 2021 ankle
injury.
Instead, during those conversations, Gustafson attempted to explain the company’s safety
concerns relating to Welch’s knee. Welch responded by debating the cause of his lingering injury,
tying the injury to the denial of his previous workers’ compensation claim, for which he blamed
Heart Truss. In refocusing the discussion back to the company’s safety concerns, Gustafson also
briefly highlighted Heart Truss’s lack of any role in the clinic’s denial of Welch’s claim. Absent
throughout these extended conversations is any hint that Gustafson harbored hostility towards
Welch based on his knee injury or his filing of workers’ compensation claims.
Resisting this conclusion, Welch takes several quotes out of context and paints them as
evidence of illegal bias. For example, Welch argues that Gustafson’s statements about being
“familiar” with Welch’s injury history and his previous “litigation” with the company, see Mar.
29, 2021, Conversation, R. 26-2, PageID 328, 333, were “inflammatory” because Gustafson
“expressly referenced” Welch’s “work-related injuries” in explaining why he was demoted, Reply
11 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
Br. 9. But these statements go only to Gustafson’s awareness of Welch’s protected activity (his
disability and his workers’ compensation claims); they do not show any animus on that front. And
mere awareness, while essential to making out a prima facie case of discrimination or retaliation,
is not enough to show pretext. See Witham v. Intown Suites Louisville Ne., LLC, 815 F.3d 260,
264 (6th Cir. 2016).
So too for Gustafson’s warning that Welch would be “discharge[d]” if he “falsif[ied] an
investigation.” Mar. 29, 2021, Conversation, R. 26-2, PageID 329; see also id. (“I’m letting you
know where you stand.”). Here, Gustafson was responding to Welch’s cryptic comment to
Johnson that “one day (coming soon)” he would be unable to do his job. Mar. 26, 2021, Letter, R.
25-4, PageID 214. From that comment, Gustafson could fairly wonder whether Welch might have
plans to stage a career-ending injury. He showed no illegal animus in reminding Welch of the
consequences of such a charade.
Welch also tries to analogize Gustafson’s comment acknowledging Welch’s “ache[s] and
. . . pain[s]” on the job, Mar. 30, 2021, Conversation, R. 26-3, PageID 341, to statements that
provided evidence of pretext in Brewer v. New Era, Inc., 564 F. App’x 834 (6th Cir. 2014). Fairly
read, however, this passing comment was nothing like the inflammatory statements in Brewer. In
response to Welch’s complaint that his new role in production was, in his estimation, more
physically demanding than his old one as a delivery driver, Gustafson pointed out the obvious—
that the heavy work at Heart Truss would cause Welch some discomfort no matter what role he
worked. This is a far cry from Brewer, where a supervisor made repeated comments that the age-
discrimination plaintiffs were “too old” and “needed to retire” in the leadup to their termination.
12 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
Id. at 839, 841. Gustafson’s comments, in short, never presented Welch’s “ache[s] and . . . pain[s]”
as a negative or as a reason for differential treatment.
Nor was there anything wrong with Gustafson pointing out, amid Welch’s repeated
complaints about his lingering knee injury, that Welch could have used his health insurance to
address the issue during his six months of paid leave for his ankle injury. Welch interprets these
comments as pressure not to file a workers’ compensation claim for his knee injury. But this gets
the timeline wrong. Welch had filed that claim—and had it rejected—years before this
conversation. Viewed in this light, Gustafson was simply pointing out a realistic, present-day
alternative to working through pain.
Finally, Welch claims that Gustafson lied to him by promising to speak with Johnson as
well as the company’s owner about Welch’s situation, something that apparently did not happen.
Skipping over the many plausible, non-deceptive explanations for this failure, there is nothing in
the record to link Gustafson’s possible deceit with hostility towards Welch’s protected classes.
Gustafson’s statement may simply have been a way to wrap up a long, frustrating conversation, a
motive that violates no civil rights law. Indeed, Welch acknowledges that Gustafson became
increasingly frustrated as the conversations went on. See, e.g., Mar. 29, 2021, Conversation, R.
26-2, PageID 330 (“I have a lot to do today . . . . [W]e’re not gonna talk about it now.”); id. at
PageID 331 (“[I’m angry at you] [b]ecause you’re mad at me.”). But that fact too does not show
retaliatory or discriminatory animus, as opposed to the honest reaction to a repetitive conversation
Gustafson was ready to conclude.
Taking all of this together, it is helpful to compare Gustafson’s allegedly biased statements
with those that provided evidence of pretext in Griffin. There, the decisionmaker’s racially charged
comments—for example, “thank[ing] God” that “[he] was not raised poor and black” and calling
13 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
a black employee “King Kong”—revealed that he harbored animus based on the protected
classification itself—the victim’s race. Griffin, 689 F.3d at 589, 596. But, as explained,
Gustafson’s comments do not evince hostility towards Welch on account of his disability or
workers’ compensation activity.
Welch pushes back on two other fronts. First, he argues that the district court’s
interpretation of the entire conversation as benign and work-related rather than evidence of
discriminatory animus runs afoul of our decision in Caudle v. Hard Drive Express, Inc., 91 F.4th
1233 (6th Cir. 2024). There, we found that it was for the jury to decide whether a manager knew
about the plaintiff’s protected FLSA activity based on the text conversation between the two. Id.
at 1239. But here, Gustafson’s awareness is neither at issue nor sufficient to show pretext. See
Witham, 815 F.3d at 264. And, as shown above, no jury could find that the conversation here
provides evidence of pretext.
Finally, Welch highlights the district court’s finding that the conversation between
Gustafson and Welch provided evidence of pretext in Welch’s demotion claim. It follows, he says,
that the conversation must also show pretext in his termination claim. But those were two different
employment actions, for which the company offered two different justifications. Evidence that
one reason was pretext for discrimination or retaliation is not evidence that the other one was as
well. See Manzer, 29 F.3d at 1084 (noting that this type of pretext argument tries to “indict the
credibility of [the] employer’s explanation” for each employment action (emphasis added)).
4. This leaves Welch’s argument that the temporal proximity between his protected
activity and his termination creates an inference of pretext. Most fundamentally, this argument
fails because the timeline does not support either of Welch’s theories. On the disability-
discrimination claim, which was based on Welch’s long-term left-knee injury, there is no temporal
14 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
proximity at all. Heart Truss knew of that condition at least since 2019, when Welch filed his
workers’ compensation claim. His termination two years later does not show any causal link to
that disability, much less that the reason given for that decision was a coverup.
The timeline underlying Welch’s retaliation claim is equally unhelpful, albeit for a different
reason. The only protected activity tied to this claim is Welch’s request for medical care when he
suffered his purported new injury on April 15, 2021. But that request was made after Gustafson
had decided to terminate Welch earlier that morning. An employer who is already contemplating
adverse action “need not suspend” its plans upon learning of the protected activity. See Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (per curiam).
Welch also seems to base temporal proximity arguments on a different protected activity—
his ankle-based medical leave that ended in March 2021. This argument too has multiple flaws.
First, this assertion appears nowhere in Welch’s complaint, and he may not “expand [his] claims
to assert new theories” of protected activity “in response to summary judgment or on appeal.”
Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (citation modified);
see also Golembiewski v. Logie, 516 F. App’x 476, 478 (6th Cir. 2013) (applying Bridgeport Music
to plaintiff who argued new unlawful reason for termination in summary judgment response).
Second, even if this were a relevant protected activity, the facts do not reflect any pretext on Heart
Truss’s part. “Temporal proximity cannot be the sole basis for finding pretext,” Donald v. Sybra,
Inc., 667 F.3d 757, 763 (6th Cir. 2012) (citation modified), and Welch has nothing to supplement
the weak temporal link here. Welch’s medical leave ended a few weeks before he was demoted at
the end of March 2021, and he was terminated two weeks after that, meaning the termination
followed the end of Welch’s leave by about one month. Without any other evidence of pretext,
15 No. 24-1584, Welch v. Heart Truss & Eng’g Corp.
that temporal coincidence cannot show that the company was actually motivated by a
discriminatory or retaliatory purpose.
* * * * *
We affirm.