NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0105n.06 Filed: February 8, 2007
Case No. 05-2027
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MICHAEL OZIER, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN RTM ENTERPRISES OF GEORGIA, INC., ) DISTRICT OF MICHIGAN doing business as Arby’s, ) ) Defendant-Appellee. ) ) _______________________________________ ) )
BEFORE: BATCHELDER, MOORE, Circuit Judges; and COHN, District Judge.*
ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Michael Ozier (“Ozier”),
appeals the district court’s decision granting summary judgment in favor of Defendant-Appellee,
RTM Enterprises of Georgia, Inc. (“RTM”), in this action in which Ozier claimed race and sex
discrimination in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981;
retaliation in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981; and
violation of Michigan’s Bullard-Plawecki Employee Right to Know Act. Because we conclude that
Ozier did not establish a prima facie case of discrimination or retaliation, and did not present
* The Honorable Avern L. Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. sufficient evidence to raise a genuine issue of fact with respect to his Bullard-Plawecki claim, we
affirm.
I.
RTM owns and operates Arby’s fast food restaurants nationwide, with two restaurants – one
on Gull Road and one on Cork Street – in Kalamazoo, Michigan. On December 27, 2000, RTM
hired Ozier, an African-American male, to work as an entry-level team member at the Cork Street
Arby’s, making $8.00 per hour. Ozier generally received positive work performance reviews, and
by early 2002, he had received several pay raises and had been made a team trainer, earning $8.60
per hour. Ozier’s first manager, Frank Davis, recommended to the area supervisor, Phil Morris, that
Ozier should be promoted to shift manager. A subsequent manager, Basem Shamus, also
recommended Ozier’s promotion to shift manager, but Ozier was never promoted.
In November 2001, D’Ann Tierney (“Tierney”), transferred from an Arby’s in Indiana to an
assistant manager position with the Gull Road and Cork Street Arby’s. She became the store
manager of the Cork Street restaurant in June 2002. Tierney observed that Ozier had “excellent
customer service skills,” and she gave him positive evaluations early in her tenure, observing that
“he was reliable, he was always there.” Tierney’s evaluation of Ozier was not unmixed, however.
Her chief criticism and concern was that Ozier was not a productive employee when left
unsupervised. She testified that Ozier would do whatever was asked of him, but that she would have
to ask him to do it, and he was not self-motivated. Tierney expressed her concern that “if I couldn’t
trust him to do the maintenance position, then how would I trust him to run a shift, unsupervised?”
She explained to Ozier that she would not simply promote him based on the number of years he had
worked there, and that he needed to prove himself before being promoted. Tierney believed that
2 Ozier’s work performance declined under her management because he was not working with a
manager present, whereas under both Davis and Shamus, Ozier had worked along with a manager.
Previous store managers had promised Ozier that he would be promoted to shift manager.
When she became store manager, Tierney talked with Ozier about his frustration at not being
promoted; she said that she understood that frustration and provided him with the restaurant’s 44-
page training manual for the shift manager position. This training program is largely driven by the
employee, and the employee is expected to take the initiative to learn the material in the manual, and
to complete the manual and present it to the manager.
Tierney assigned Bill Goodwin, an assistant manager, to advise Ozier during the training
program. She stated that she met with Goodwin and Ozier to discuss the training program, but Ozier
claims that they never discussed Goodwin’s helping him with the training. Rather, Ozier testified
that Mr. Goodwin merely “showed me some paperwork that I was supposed to be learning . . . just
little odds and ends that would update me on the [shift manager’s] book.”
Tierney explained that Ozier was given verbal tests related to the shift manager position, on
which he did not perform well, and that he failed to complete most of the sections of his training
book, so he did not qualify for any written examinations, which were required to qualify for the
promotion. Tierney claimed that Ozier began complaining to other employees in late 2002 that he
was being passed over for promotion because he is African-American. Having heard about the
complaints, Tierney confronted Ozier and he denied making them. Ozier claims that Tierney then
said to him that no one is promoted unless they “kiss a little butt.” Tierney denies making that
statement.
3 During this time, Tierney trained three other employees – all caucasian women – for manager
positions. Ozier claims that Tierney promised to train him after she was finished training Caralee
Waswick, the first of the three, and that no one at RTM ever explained to him why he was not
trained for the shift manager position. Tierney denies ever making such a promise. Ozier then
complained to the other managers in the store, including Waswick, that Tierney was not training him
because of his race. In January 2003, weeks before Ozier’s termination, Waswick informed Tierney
of his comments.
RTM maintains that Ozier’s dismissal was unrelated to his comments and complaints about
Tierney, and that he was fired because on four separate occasions, Ozier had end-of-the-day cash
shortages in his cash register. Ozier claims he only remembers the third and fourth shortages. The
third shortage, in the amount of $20.87, occurred on December 9, 2002, and Ozier received a written
warning from Tierney, including notice that another shortage would result in his termination. The
fourth shortage, in the amount of $5.09, occurred on February 3, 2003. Tierney did not count the
drawer herself, but Waswick reported the shortage to her. Ozier denied that his drawer was short,
but he did not count the money in the drawer at the end of the day.
After the fourth shortage, Tierney reported to Phil Morris, the area supervisor, that Ozier’s
drawer was short again after he had been given a final warning, and Morris agreed that Ozier’s
employment should be terminated. Tierney stated that the cash shortages were the only reason she
had for firing Ozier.
When Ozier arrived at work after the fourth cash shortage, Tierney informed him that his
drawer was short again and that he was being fired. Ozier claims that during this meeting, Tierney
told him that “I heard you been talking about me behind my back.” Ozier denied that his drawer was
4 short, and questioned whether he was being fired for comments he had made to Waswick.
According to Ozier, Tierney responded that in fact his drawer was short and that was why “we’re
getting rid of you.”
Shortly after he was fired, Ozier requested his personnel file. Ozier claims that he received
only parts of the file, which did not include any performance reviews or disciplinary write-ups that
would ordinarily be included in a personnel file. Ozier submitted a second request for his personnel
file along with a letter from his attorney, but RTM has not given him the file, claiming that it cannot
be located.
Ozier filed a three-count complaint against RTM in the Michigan state court, alleging that
RTM’s failure to promote him was the result of race and sex discrimination and retaliation and that
RTM’s failure to turn over his personnel file violated Michigan’s Bullard-Plawecki Act. RTM
removed the action to the United States District Court for the Western District of Michigan, and
moved for summary judgment on all claims. After hearing oral argument, the district court granted
RTM’s motion. Ozier filed this timely appeal.
II.
We review de novo the district court’s grant of summary judgment. Hammon v. DHL
Airways, Inc., 165 F.3d 441, 447 (6th Cir. 1999). Summary judgment pursuant to Fed. R. Civ. P.
56 is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). When considering
a motion for summary judgment, “the inference to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the motion.” Adkins v. United Mine
5 Workers, 941 F.2d 392, 399 (6th Cir. 1991) (quoting United States v. Diebold, 369 U.S. 654, 655
(1962)). The standard for determining whether summary judgment is appropriate is whether “the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986).
A. OZIER ’S RACIAL DISCRIMINATION CLAIM FOR ALLEGED FAILURE TO PROMOTE
Ozier alleges that RTM discriminated against him on the basis of race1 in violation of 42
U.S.C. § 1981. He may establish a claim of discrimination either by introducing direct evidence of
discrimination, or by providing circumstantial evidence which would support an inference of
discrimination. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). “The direct
evidence and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove
one or the other, not both.” Id. at 348-49. “Under the direct evidence approach, once the plaintiff
introduces evidence that the employer terminated him because of his race or other protected status,
the burden of persuasion shifts to the employer to prove that it would have terminated the plaintiff
even had it not been motivated by discrimination.” Johnson v. Univ. of Cincinnati, 215 F.3d 561,
572 (6th Cir. 2000). See also Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081
(6th Cir.1994).
Under the circumstantial evidence approach, we apply the McDonnell Douglas test. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The variant of that test that we have
applied in failure-to-promote cases requires that in order to establish a prima facie case of racial
1 Although Ozier’s complaint also claimed discrimination on the basis of sex, the district court did not mention sex discrimination in its opinion, Ozier does not mention it in his briefs on appeal, and he has apparently abandoned that claim.
6 discrimination, Ozier must demonstrate that: (1) he is a member of a protected class; (2) he applied
for 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 at the time the plaintiff's request for promotion was denied. Nguyen v. City of Cleveland,
229 F.3d 559, 562-63 (6th Cir. 2000). If Ozier establishes his prima facie case, a mandatory
presumption of discrimination is created and the burden shifts to RTM to “articulate some legitimate,
nondiscriminatory reason for the employee's rejection.” McDonnell Douglas Corp., 411 U.S. at 802.
If RTM carries this burden, then Ozier must prove that the proffered reason was actually a pretext
to hide unlawful discrimination. Id. at 804. He may establish that the proffered reason was a mere
pretext by showing that 1) the stated reason had no basis in fact; 2) the stated reason was not the
actual reason; or 3) that the stated reason was insufficient to explain the defendant's action. See
Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir.1991). “[A] reason cannot be proved
to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The district court properly rejected Ozier’s claim that Tierney’s alleged comment that he
would have to “kiss a little butt” to be promoted amounted to direct evidence of racial
discrimination. As we have held, “‘simple teasing’ or ‘offhand comments, and isolated incidents’
do not amount to direct evidence of discrimination under Title VII.” Singfield v. Akron Metro. Hous.
Auth., 389 F.3d 555, 561 (6th Cir. 2004) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). In addition, the district court correctly observed that it was pure speculation to infer that
the alleged comment was racially motivated.
7 Finding no direct evidence of discrimination, the district court analyzed Ozier’s claim using
the McDonnell Douglas approach. The district court acknowledged that Ozier satisfied the first and
third prongs of the test, namely that he is a member of a protected class and that he suffered an
adverse employment action. See Nguyen, 229 F.3d at 562 (“For the purposes of Title VII, a failure
to promote is an adverse employment action.”) The court then turned to the second prong of the
prima facie case, which requires Ozier to demonstrate that he was qualified for the promotion he
sought.
The district court found that Ozier had failed to present evidence that he was qualified for
the promotion to shift manager. The court noted that although Tierney was sympathetic to the fact
that previous managers had recommended Ozier for promotion, she had explained that Ozier lacked
initiative and did not perform well without supervision, and that she believed that these
characteristics disqualified Ozier for a shift manager position. This evidence is unrefuted in the
record. Furthermore, it is undisputed that Ozier’s training book “remained almost entirely
unmarked”; that the shift manager training program is driven by the employee and the employee is
expected to take the initiative in completing the training book and preparing for the promotion
examinations; that RTM requires that the training program be completed in order to qualify for
promotion, and that Ozier performed poorly on verbal tests, and therefore was never given the
written tests necessary for promotion.
From the record, it is clear that the district court did not err in concluding that Ozier was not
qualified for the promotion he sought. Because Ozier failed to satisfy the second prong under
McDonnell Douglas, he failed to establish his prima facie case for racial discrimination. Failure to
satisfy the second prong is dispositive of the issue, and while we therefore do not need to determine,
8 as the district court did, that Ozier also failed to satisfy the fourth element of the prima facie case
because he could not show that he was replaced by a person outside of the protected class or was
treated less favorably than a similarly situated individual outside of his protected class, we find no
error in that conclusion.
B. OZIER ’S RETALIATION CLAIMS
Ozier alleges that RTM retaliated against him by dismissing him after he claimed that he was
the victim of racial discrimination. The district court found that Ozier’s claim lacked merit and did
not create a genuine issue of fact for trial, and we agree.
Ozier complained about Tierney behind her back on several occasions, making derogatory
comments about her and her work ethic, as well as accusing her of discrimination. Tierney testified
that in October 2002 she had heard rumors from the other employees that Ozier had been
complaining about her, and that she warned him that if he had a problem with her, he should come
talk to her about it. Shortly before Tierney fired Ozier in February 2003, she allegedly said, “I heard
you been talking about me behind my back.” Ozier argues that this statement provides direct
evidence of retaliation. The district court disagreed, finding that it would have to speculate about
what Tierney meant by the statement because the statement on its own does not “unequivocally
connote discriminatory motives,” and, therefore, was not direct evidence of retaliation. We agree.
As we have held, “direct evidence is that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). It does not
require the fact finder to draw any inferences to reach that conclusion. See Abbott v. Crown Motor
Co., 348 F.3d 537, 542 (6th Cir. 2003); see also Nguyen, 229 F.3d at 563. Here, as the court
9 explained, Ozier has provided only inferences and speculation and the statement itself does not
require us to conclude that Tierney was motivated, even in part, by unlawful discrimination in
deciding to terminate Ozier’s employment.
Finding no direct evidence of retaliation, the court turned to whether Ozier had established
a prima facie case of retaliation. To meet this light burden, Ozier must show: 1) that he engaged
in a protected activity; 2) that this was known to the defendant; 3) that the defendant took an adverse
employment action against him; and 4) that there was a causal connection between the protected
activity and the adverse employment action. See Singfield, 389 F.3d at 563. The court assumed for
the sake of argument that Ozier met the first element of the test, and then noted that it was
undisputed that he also met the second and third elements.
Under federal law, in order to show a causal connection between the protected activity and
the adverse action – the fourth element of the prima facie case – Ozier must produce sufficient
evidence to support an inference that RTM took the adverse employment action because Ozier had
complained of discrimination. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.
1997). Ozier has submitted no evidence other than temporal proximity to support his assertion that
there was a causal connection between his complaints against Tierney and his termination. We have
held that temporal proximity alone is insufficient to establish a causal connection. See Little v. BP
Explorations & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001); Nguyen, 229 F.3d at 566; Cooper v. City
of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). The record indicates that Ozier has failed
to meet his burden of establishing a causal connection and we agree with the district court’s decision.
We also agree with the district court that even assuming that Ozier properly established a
causal connection, he failed to show that RTM’s articulated reason for dismissal was pretextual. As
10 the court rightly observed, RTM has never wavered from its assertion that it dismissed Plaintiff for
repeated cash shortages. It is undisputed that terminating employees for repeated cash shortages is
consistent with company policy, and that Ozier had been warned that any additional shortages would
result in termination. Ozier, although he denies that he was terminated because of the cash shortages
in his register, has offered no evidence that he was not in fact terminated because of his fourth cash
shortage. Summary judgment for RTM in this case was appropriate.
C. OZIER ’S BULLARD -PLAWECKI ACT CLAIM
Ozier requested from RTM a copy of his complete personnel file, which RTM failed to
provide. RTM claims that it cannot locate the file. Tierney testified that upon receipt of Ozier’s first
request, Morris copied the entire file and Tierney personally sent it to Ozier by certified mail. She
testified further that Morris eventually took the file to Cleveland, Ohio, to the general repository for
personnel files for individuals whose employment with RTM had been terminated. Affidavits from
RTM employees indicate that they extensively searched for Ozier’s personnel file, but were unable
to find it. Ozier alleges that RTM intentionally destroyed or concealed the file, but has provided no
evidence to support his claim. He contends that RTM has violated Michigan’s Bullard-Plawecki
Act, Mich. Comp. Laws. § 423.503, by failing to produce his personnel file upon request.
The Bullard-Plawecki Act provides in pertinent part:
An employer, upon written request which describes the personnel record, shall provide the employee with an opportunity to periodically review at reasonable intervals, generally not more than 2 times in a calendar year . . . the employee’s personnel record if the employer has a personnel record for that employee.
Mich. Comp. Laws § 423.503.
Under § 423.511 of the Act:
11 If an employer violates this act, an employee may commence an action in the circuit court to compel compliance with this act . . . . Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs. (b) For a wilful and knowing violation of this act, $200.00 plus cost, reasonable attorney’s fees, and actual damages.
Whether an employer violates the Bullard-Plawecki Act by losing an employee’s personnel
file is a question of first impression for this Court. Michels v. Delaware McDonald’s Corp., No. 83-
CV-1380-DT, 1985 U.S. Dist. LEXIS 21074 (E.D. Mich. Apr. 3, 1985), is the only case in Michigan
or this Circuit addressing the issue of a lost personnel file under Bullard-Plawecki. In Michels, the
employer lost the employee’s record but later discovered it, and the court held that if a personnel file
is lost, then the employer does not have a personnel record for that employee within the meaning of
the Bullard-Plawecki Act and therefore the employer is not required to produce it. Michels, 1985
U.S. Dist. LEXIS 21074, at *2. Here, the district court followed Michels and concluded that RTM
could not produce what it did not have and did not violate Bullard-Plawedki as long as the file was
lost.
In this case, Tierney testified that she copied Ozier’s personnel file and sent it to him by
certified mail, and RTM produced sworn affidavits from RTM employee’s indicating an extensive
but fruitless search for the missing file. Ozier presented no evidence to the contrary. We recognize
that it would be difficult for a plaintiff to demonstrate that an employer intentionally destroyed or
concealed a file, but the only evidence in the record is that Ozier’s file is lost. We agree with the
district court that the reasoning in Michels is sound, and we affirm the court’s conclusion that, under
these circumstances, Ozier has failed to present evidence sufficient to preserve this claim for trial.
12 CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of district court.