NOT RECOMMENDED FOR PUBLICATION File Name: 23a0102n.06
Case No. 22-5638
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 23, 2023 ) RICHARD DEVORE, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN UNITED PARCEL SERVICE CO., ) DISTRICT OF KENTUCKY Defendant-Appellee. ) ) OPINION
Before: SUHRHEINRICH, COLE, and MURPHY, Circuit Judges.
COLE, Circuit Judge. Richard DeVore, a longtime employee at United Parcel Service Co.
(UPS), was terminated after violating a UPS policy, ostensibly by mistake. DeVore sued UPS,
claiming that the real reason for his termination was retaliatory animus based on a request for leave
under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–54. UPS moved for
summary judgment on the basis that it had a legitimate, nondiscriminatory reason for DeVore’s
termination—namely, his error at work. The district court granted the motion, and DeVore
appealed. We affirm.
I. BACKGROUND
In May 2018, DeVore was working as a flight crew scheduler at UPS, where he had been
employed for nearly thirty years. As of 2016, based on a Collective Bargaining Agreement (CBA)
with the UPS pilots, UPS had a policy that flight schedulers could release pilots early from their Case No. 22-5638, DeVore v. UPS
shift if appropriate based on workflow, but if the scheduler did so, he was required to document it
so that the pilot’s pay would be reduced accordingly.
In 2014, DeVore began suffering from medical problems related to his feet. By 2018, he
had twice taken FMLA leave to receive and recover from foot surgeries. In or around March 2018,
he reported to his supervisor, Jeff Johnston, that he would need to take time off from work again
for another surgery, although he did not say when the surgery would be. DeVore and other
employees testified about numerous issues with Johnston as a supervisor, describing him as
unprofessional and, in effect, a bully who ribbed DeVore and other employees for their
appearances, although no testimony linked these jibes to FMLA leave or other FMLA-protected
activity.
During one shift in May 2018, DeVore received a call from a UPS pilot asking to be
released early. DeVore agreed to do so. DeVore did not enter the code to reduce the pilot’s pay;
according to DeVore, he believed he had the discretion not to enter the code and instead allow the
pilot to collect his full pay.
DeVore’s higher-ups at UPS soon learned of his mistake while looking through the flight
crew schedulers’ call logs for information about an unrelated incident. They explained that
DeVore violated UPS’s “integrity policy” by failing to enter the pay-deduction code as required.
UPS then terminated DeVore for falsifying documents and violating the integrity policy. In email
correspondence between UPS supervisors, one supervisor stated that DeVore had “been told many
of times [sic] not to do these types of things.” (Emails, R. 54-15.) Additionally, another UPS
employee previously reported DeVore to his immediate supervisor, Johnston, for adjusting another
pilot’s schedule without following protocols.
-2- Case No. 22-5638, DeVore v. UPS
DeVore and other UPS employees testified that they were unaware of another employee
being fired for this specific error. One employee stated that he had allowed pilots to keep their
full day of pay despite being released early from shifts on numerous occasions and was never
disciplined for it, although he also claimed that he was “terminated . . . under similar
circumstances” relating to union activity. (Lynott Decl., R. 62-8, PageID 479–80.)
DeVore sued UPS in federal court for FMLA retaliation, arguing that his May 2018
termination was caused not by his coding error but by his request for FMLA leave two months
earlier. UPS moved for summary judgment. The district court granted the motion. DeVore timely
appealed.
II. ANALYSIS
We review a grant of a motion for summary judgment de novo. Walsh v. KDE Equine,
LLC, 56 F.4th 409, 416 (6th Cir. 2022). Summary judgment is appropriate only where—taking
all evidence and reasonable inferences in favor of the non-movant—there is no genuine dispute of
material fact and the movant is entitled to judgment as a matter of law. Sec’y of Labor v.
Timberline South, LLC, 925 F.3d 838, 843 (6th Cir. 2019); Fed. R. Civ. P. 56(a).
DeVore contends that his termination from UPS constituted unlawful retaliation under the
FMLA, which prohibits employers from firing an employee who requests leave under the act. See
29 U.S.C. § 2615(a); Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 866–67 (6th Cir. 2023)
(holding that FMLA retaliation claims may arise under § 2615(a)(1) or § 2615(a)(2)).
With respect to FMLA retaliation claims on appeal from summary judgment, “we must
determine whether, within the steps of the McDonnell Douglas framework, there are genuine
disputes of material fact.” Marshall v. Rawlings Co., LLC, 854 F.3d 368, 381 (6th Cir. 2017). At
the first step of McDonell Douglas’s burden-shifting framework, DeVore must establish his prima
-3- Case No. 22-5638, DeVore v. UPS
facie case by showing that (1) he engaged in FLMA-protected activity; (2) UPS knew of his FMLA
activity; (3) after learning of the FMLA activity, UPS took an adverse action against him; and
(4) there was a causal link between the FMLA activity and the adverse action. Donald v. Sybra,
Inc., 667 F.3d 757, 761 (6th Cir. 2012). Once DeVore makes his prima facie case, UPS must
present a legitimate, nondiscriminatory reason for the adverse action—here, terminating his
employment. Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006). Once UPS does so,
DeVore’s claim can survive only if he creates a genuine dispute of fact that UPS’s proffered reason
is pretextual. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
Here, even assuming DeVore has provided sufficient evidence to support his prima facie
case, he fails to create a genuine dispute of material fact on the final McDonell Douglas step
requiring a showing that UPS’s rationale for terminating him was pretextual. A plaintiff can
demonstrate pretext by putting forth evidence that “the employer’s proffered reasons (1) have no
basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action.”
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (citing Dews v. A.B.
Dick Co., 231 F.3d 1016
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0102n.06
Case No. 22-5638
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 23, 2023 ) RICHARD DEVORE, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN UNITED PARCEL SERVICE CO., ) DISTRICT OF KENTUCKY Defendant-Appellee. ) ) OPINION
Before: SUHRHEINRICH, COLE, and MURPHY, Circuit Judges.
COLE, Circuit Judge. Richard DeVore, a longtime employee at United Parcel Service Co.
(UPS), was terminated after violating a UPS policy, ostensibly by mistake. DeVore sued UPS,
claiming that the real reason for his termination was retaliatory animus based on a request for leave
under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–54. UPS moved for
summary judgment on the basis that it had a legitimate, nondiscriminatory reason for DeVore’s
termination—namely, his error at work. The district court granted the motion, and DeVore
appealed. We affirm.
I. BACKGROUND
In May 2018, DeVore was working as a flight crew scheduler at UPS, where he had been
employed for nearly thirty years. As of 2016, based on a Collective Bargaining Agreement (CBA)
with the UPS pilots, UPS had a policy that flight schedulers could release pilots early from their Case No. 22-5638, DeVore v. UPS
shift if appropriate based on workflow, but if the scheduler did so, he was required to document it
so that the pilot’s pay would be reduced accordingly.
In 2014, DeVore began suffering from medical problems related to his feet. By 2018, he
had twice taken FMLA leave to receive and recover from foot surgeries. In or around March 2018,
he reported to his supervisor, Jeff Johnston, that he would need to take time off from work again
for another surgery, although he did not say when the surgery would be. DeVore and other
employees testified about numerous issues with Johnston as a supervisor, describing him as
unprofessional and, in effect, a bully who ribbed DeVore and other employees for their
appearances, although no testimony linked these jibes to FMLA leave or other FMLA-protected
activity.
During one shift in May 2018, DeVore received a call from a UPS pilot asking to be
released early. DeVore agreed to do so. DeVore did not enter the code to reduce the pilot’s pay;
according to DeVore, he believed he had the discretion not to enter the code and instead allow the
pilot to collect his full pay.
DeVore’s higher-ups at UPS soon learned of his mistake while looking through the flight
crew schedulers’ call logs for information about an unrelated incident. They explained that
DeVore violated UPS’s “integrity policy” by failing to enter the pay-deduction code as required.
UPS then terminated DeVore for falsifying documents and violating the integrity policy. In email
correspondence between UPS supervisors, one supervisor stated that DeVore had “been told many
of times [sic] not to do these types of things.” (Emails, R. 54-15.) Additionally, another UPS
employee previously reported DeVore to his immediate supervisor, Johnston, for adjusting another
pilot’s schedule without following protocols.
-2- Case No. 22-5638, DeVore v. UPS
DeVore and other UPS employees testified that they were unaware of another employee
being fired for this specific error. One employee stated that he had allowed pilots to keep their
full day of pay despite being released early from shifts on numerous occasions and was never
disciplined for it, although he also claimed that he was “terminated . . . under similar
circumstances” relating to union activity. (Lynott Decl., R. 62-8, PageID 479–80.)
DeVore sued UPS in federal court for FMLA retaliation, arguing that his May 2018
termination was caused not by his coding error but by his request for FMLA leave two months
earlier. UPS moved for summary judgment. The district court granted the motion. DeVore timely
appealed.
II. ANALYSIS
We review a grant of a motion for summary judgment de novo. Walsh v. KDE Equine,
LLC, 56 F.4th 409, 416 (6th Cir. 2022). Summary judgment is appropriate only where—taking
all evidence and reasonable inferences in favor of the non-movant—there is no genuine dispute of
material fact and the movant is entitled to judgment as a matter of law. Sec’y of Labor v.
Timberline South, LLC, 925 F.3d 838, 843 (6th Cir. 2019); Fed. R. Civ. P. 56(a).
DeVore contends that his termination from UPS constituted unlawful retaliation under the
FMLA, which prohibits employers from firing an employee who requests leave under the act. See
29 U.S.C. § 2615(a); Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 866–67 (6th Cir. 2023)
(holding that FMLA retaliation claims may arise under § 2615(a)(1) or § 2615(a)(2)).
With respect to FMLA retaliation claims on appeal from summary judgment, “we must
determine whether, within the steps of the McDonnell Douglas framework, there are genuine
disputes of material fact.” Marshall v. Rawlings Co., LLC, 854 F.3d 368, 381 (6th Cir. 2017). At
the first step of McDonell Douglas’s burden-shifting framework, DeVore must establish his prima
-3- Case No. 22-5638, DeVore v. UPS
facie case by showing that (1) he engaged in FLMA-protected activity; (2) UPS knew of his FMLA
activity; (3) after learning of the FMLA activity, UPS took an adverse action against him; and
(4) there was a causal link between the FMLA activity and the adverse action. Donald v. Sybra,
Inc., 667 F.3d 757, 761 (6th Cir. 2012). Once DeVore makes his prima facie case, UPS must
present a legitimate, nondiscriminatory reason for the adverse action—here, terminating his
employment. Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006). Once UPS does so,
DeVore’s claim can survive only if he creates a genuine dispute of fact that UPS’s proffered reason
is pretextual. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
Here, even assuming DeVore has provided sufficient evidence to support his prima facie
case, he fails to create a genuine dispute of material fact on the final McDonell Douglas step
requiring a showing that UPS’s rationale for terminating him was pretextual. A plaintiff can
demonstrate pretext by putting forth evidence that “the employer’s proffered reasons (1) have no
basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action.”
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (citing Dews v. A.B.
Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).
Regarding the first option, it is undisputed that DeVore’s decision not to apply the pay-
reduction code to reflect the pilot’s time off work in May 2018 occurred and contradicted UPS
policy. Turning to the second and third options, DeVore maintains that his evidence shows that
UPS’s decision to terminate him was motivated by his previous notice of FMLA leave and the
policy violation was so minor that it was insufficient to warrant termination. DeVore emphasizes
that his request for leave related to an upcoming but unscheduled surgery occurred two months
before UPS terminated him. Even assuming that DeVore’s March 2018 statement that he would
need to go “out on disability”—untethered to any particular timeframe—gave notice of FMLA
-4- Case No. 22-5638, DeVore v. UPS
activity, “the law in this circuit is clear that temporal proximity cannot be the sole basis for finding
pretext.” Donald, 667 F.3d at 763 (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309,
317 (6th Cir. 2001)). Temporal proximity can support a finding of pretext when bundled with
other corroborating evidence, see Seeger, 681 F.3d at 285, but DeVore lacks such supporting
evidence.
DeVore points to testimony from other employees stating that they were unaware of
someone else being terminated for the same error DeVore committed; that other, unnamed
employees committed worse errors than DeVore without being fired; that Johnston, DeVore’s
supervisor, was a bully who insulted employees based on their appearances; and that UPS allegedly
fired an employee several years before for engaging in union activity. But none of this testimony
links DeVore’s termination to his request for leave.
To start, to the extent that the UPS employees’ testimonies intimate that unnamed
individuals committed the same or worse errors without being fired, those statements are too
speculative and unsupported by specific facts to defeat summary judgment. See Alexander v.
CareSource, 576 F.3d 551, 560 (6th Cir. 2009). Moreover, that UPS did not usually fire people
for the kind of error that DeVore committed does not provide a basis for finding pretext,
particularly where the record reflects that UPS supervisors believed that DeVore had a history of
similar errors and had already been warned that further disciplinary measures would ensue. See
Donald, 667 F.3d at 763 (“Whether [an employer] followed its own protocol . . . provides neither
us, nor a rational juror, with a basis to believe that [the employer’s] decision was improper.”)
There is no indication that the other employees described in DeVore’s submissions had a similar
background or, indeed, were ever caught committing the error that DeVore made, making such
comparisons inapt.
-5- Case No. 22-5638, DeVore v. UPS
Similarly, although Johnston’s comments to DeVore and other employees were
inappropriate—even hurtful—nothing in the record links these insults to DeVore’s request for
FMLA leave, particularly where Johnston also lambasted other employees who did not request
FMLA leave. The same is true of UPS’s alleged termination of a different employee for union-
related conduct; it simply does not support DeVore’s argument that his termination was rooted in
his request for FLMA leave, an entirely different sort of statutorily protected conduct. See Norton
v. LTCH, 620 F. App’x 408, 412 (6th Cir. 2015) (citing EEOC v. Ford Motor Co., 782 F.3d 753,
767 (6th Cir. 2015)) (“To show pretext, [a plaintiff] must show both that [an employer’s] proffered
reason was not the real reason it fired her and that the real reason was retaliation for protected
activity under the FMLA.”).
Unfortunately for DeVore, there is no evidence in the record that would allow a reasonable
jury to conclude that UPS terminated him because of a request for FMLA leave.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary judgment in
favor of UPS.
-6-