NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0181n.06
Case No. 17-3737
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Apr 09, 2018 ROBERT C. STEIN, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ATLAS INDUSTRIES, INC., ) OHIO ) Defendant-Appellee. ) ) )
BEFORE: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. A few years back, Robert Stein had a run of bad fortune.
Stein’s son, who suffers from a rare neurological condition, nearly died. Not a month later, Stein
tore his meniscus at work. That injury required surgery, so Stein took medical leave to have an
operation and recover.
Things got complicated during Stein’s leave. About ten weeks into his recovery, Stein
went in for a checkup. There, Stein says that he was told that he would not be released to work
until August 10. However, Stein concedes that he was given a release slip from the doctor’s
office that released him to work as of July 20, but to perform only office work until August 10.
Stein gave that release slip to Atlas’s workers’ compensation office. After that visit, the doctor’s
office notified Stein's employer—Atlas Industries—that Stein could return to work with light- Case No. 17-3737, Stein v. Atlas Indus., Inc.
duty restrictions in just two days. The upshot? Atlas expected Stein to return to work the
following Monday, but Stein thought he was on leave for several more weeks.
On Monday, Stein neither showed up for work nor called in. Tuesday and Wednesday
were no different—Atlas heard nothing from Stein. So on Thursday, Atlas fired him. Company
policy, his bosses said: Employees who missed three workdays without notification were subject
to automatic termination. No exceptions.
Stein sued, claiming that Atlas violated the Family and Medical Leave Act and the
Employee Retirement Income Security Act. The district court granted Atlas summary judgment,
and Stein now appeals. We review the district court’s grant of summary judgment de novo,
viewing the record in the light most favorable to Stein and drawing all reasonable inferences in
his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
I.
Stein’s first set of claims arises under the Family and Medical Leave Act. The FMLA
guarantees eligible employees up to twelve weeks of unpaid, job-protected leave to recover from
a serious medical condition. 29 U.S.C. § 2612. Stein claims that by firing him while he was on
leave after his knee surgery, Atlas interfered with the exercise of his FMLA rights and retaliated
against him for exercising them. See id. § 2615.
A.
To prevail on his FMLA interference claim, Stein must show that: (1) he was an FMLA-
eligible employee, (2) Atlas is a covered employer, (3) he was entitled to leave under the FMLA,
(4) he gave Atlas notice of his intent to take leave, and (5) Atlas denied him FMLA benefits to
which he was entitled. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004).
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Only the fifth element is in dispute: Stein says that Atlas denied him FMLA benefits when it
fired him for failing to show up or call in after he was released for light-duty work.
The FMLA and the regulations say otherwise. The FMLA provides that an employee
who has a serious health condition can take up to twelve weeks of leave per year. See 29 U.S.C.
§ 2612(a)(1)(D). But the FMLA does not grant an unconditional right to leave. To qualify, an
employee must “comply with [his] employer’s usual and customary notice and procedural
requirements,” including internal call-in policies. 29 C.F.R. § 825.302(d); see Srouder v. Dana
Light Axle Mfg., LLC, 725 F.3d 608, 615 (6th Cir. 2013). And where an employee fails to do so,
the employer is within its rights to terminate him—even if the days he failed to call in were
otherwise FMLA-protected. See Srouder, 725 F.3d at 615 (approving termination where FMLA-
eligible employee failed to comply with internal call-in requirement).
Here, Atlas’s policy required employees on medical leave to either return to work or call
in once their doctor released them with light-duty restrictions. And the company’s employee
handbook provided that “any associate who is absent three (3) consecutive days without
permission or without calling in [would] be automatically discharged.” R. 62-3, Pg. ID 843. So,
when Stein failed to report for work or call in for three consecutive days after his release, Atlas
was within its rights to terminate him. See Cundiff v. Lenawee Stamping Corp., 597 F. App’x
299, 300–01 (6th Cir. 2015) (holding that employer was “justified in terminating [employee] for
his failure to follow the call-in requirements of [its] attendance policy” (second alteration in
original) (quoting Srouder, 725 F.3d at 615)). Since Stein failed to comply with Atlas’s notice
requirements, the FMLA was no obstacle to Atlas terminating him.
Stein’s response is twofold. He first claims that Atlas’s policies conflict with the
FMLA’s light-duty regulations. Stein is correct that an employer may not require that an
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employee return to work once cleared for light duty if the employee has unexhausted FMLA
leave. See 29 C.F.R. § 825.702(d)(2) (providing that “[i]f the employer offers [a light-duty]
position, the employee is permitted but not required to accept the position”); see also id.
§ 825.207(e) (employee “may decline the employer’s offer of a light duty job”); id. § 825.220(d)
(employee’s acceptance of light-duty assignment must be “voluntary and uncoerced”).
The FMLA does not, however, prohibit employers from requiring that employees call in and
provide notice about their intent to continue FMLA leave following their release to light-duty
work. See id. § 825.302(d) (employer may enforce “usual and customary notice and procedural
requirements”); Allen v. Butler Cty. Comm’rs, 331 F. App’x 389, 394 (6th Cir. 2009) (“[N]othing
in the FMLA or the implementing regulations prevents an employer from enforcing a rule
requiring employees on FMLA leave to keep the employer informed about the employee’s
plans.” (quoting Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 972 (7th Cir. 2000))). That
distinction is crucial here. Had Stein contacted Atlas to say that he was using his remaining two
weeks of FMLA leave and the company subsequently fired him under the attendance policy,
Stein would have a claim. But that is not what happened. Atlas’s policy required Stein either to
return to work or call in and report his intentions, and Stein did neither. So the light-duty
regulations do not protect him.
Stein’s next argument also relies on the FMLA regulations, under which an employer
cannot fire an employee who fails to provide notice due to “unusual circumstances.” 29 C.F.R.
§ 825.302(d). Stein claims that he had no idea that he was released for light-duty work, and that
Atlas’s handbook did not require him to call in.
Stein’s unusual-circumstances argument fails for two interrelated reasons. First, Stein’s
own confusion about his return-to-work date does not constitute an unusual circumstance.
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To see why, consider the regulations’ sole example of the sort of “unusual circumstance” that
excuses an employee’s failure to provide notice: an employee who tries to call in sick—but
reaches only his employer’s already-full voicemail system. Id. Here, by contrast, Stein never
attempted to call in because he claims that he was unaware that he had been cleared for light-
duty work. Apparently, Stein’s doctor told him one thing but gave Stein a written return-to-work
slip that said something else. The form by its terms released Stein to return to office work, but
evidently, he did not understand it. This mistake does not permit Stein to take cover under the
unusual-circumstances exception. See Srouder, 725 F.3d at 615 (no unusual circumstances
where employee claimed to be under the mistaken impression that his employer had waived its
notice requirements). People make mistakes—there is nothing unusual about that. And for
Stein, this was indeed an unfortunate misunderstanding. But it is not one that federal law can fix.
Because Stein had been cleared to return to work on light duty, it was not unusual for
Atlas to expect Stein to call in pursuant to Atlas’s policy. Atlas’s employee handbook provides
that an employee’s sick leave “is for a specific period of time based on medical verification by
the associate’s physician, indicating that the associate is physically unable to perform work due
to illness or injury.” R. 68-1, Pg. ID 2176; R. 62-3, Pg. ID 857–58. Thus, once Stein’s doctor
verified that he was physically able to work, Stein had to call in. The fact that he ultimately
could have turned down a light-duty assignment does not change this requirement. Indeed, the
handbook is unequivocal; it provides that “it is [the employee’s] responsibility to be on the job
and keep [Atlas] advised when you are unable to work, whatever the reason.” R. 68-1, Pg. ID
2176–77 (emphasis added). And that handbook was also clear that Atlas would terminate any
employee who failed to come to work or provide notice for three consecutive workdays. These
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provisions were sufficient to make Stein aware that if he failed to let Atlas know his plans, he
could be fired.1
Thus, because Stein failed to comply with Atlas’s notice requirements and the unusual-
circumstances exception does not apply, his interference claim fails.
B.
Stein next claims that Atlas retaliated against him for exercising his FMLA rights. When
evaluating FMLA retaliation claims in the absence of direct evidence, courts employ the
McDonnell Douglas burden-shifting framework. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d
274, 283 (6th Cir. 2012); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
that framework, the burden is initially on Stein to show that (1) he exercised a protected right
under the FMLA, (2) Atlas knew he exercised that right, (3) he suffered an adverse employment
action, and (4) a causal connection existed between his protected activity and the adverse
employment action. Seeger, 681 F.3d at 283. The parties dispute only the causation element on
appeal. So, to make his prima facie case, Stein must point to evidence that “enables the court to
deduce that there is a causal connection between the retaliatory action and the protected
activity.” Id. (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)).
Stein admits that his only evidence of causation is temporal proximity. After Stein
notified Atlas that he intended to take FMLA leave, about ten weeks passed before the company
fired him. See Bush v. Compass Grp. USA, Inc., 683 F. App’x 440, 452 (6th Cir. 2017)
(explaining that proximity in this context reflects “the ‘time after an employer learns of a
1 Stein also points to a handbook provision indicating that he would not be allowed to return to work until he completed a drug screen and work-fitness exam, which Atlas never scheduled. But this is not the sort of irregularity that triggers the unusual-circumstances exception, which applies in situations where the employee’s failure to provide notice is somehow “justified.” Srouder, 725 F.3d at 615. Stein cannot claim that this provision “justified” his failure to provide notice, since—on Stein’s own version of the facts—he was simply unaware that he had been released to work.
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protected activity,’ not the time after the plaintiff’s FMLA leave expires” (quoting Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008))). Without more, however, temporal
proximity only suffices to make a plaintiff’s prima facie case where the adverse employment
action occurs “very close in time after an employer learns of a protected activity.” Seeger,
681 F.3d at 284 (quoting Mickey, 516 F.3d at 525); see also Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (per curiam) (noting approvingly that “the cases that accept mere
temporal proximity . . . as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close’” (quoting O’Neal v. Ferguson
Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001))).
How close is “very close”? Stein has not pointed to any binding case suggesting that a
period longer than eight weeks will suffice. And our cases indicate that the line should be drawn
shy of the ten-week mark. Compare Seeger, 681 F.3d at 283–84 (eight-week gap sufficient to
establish prima facie case), with Bush, 683 F. App’x at 452 (affirming dismissal where employee
was terminated ten weeks after notice of FMLA leave because he failed to “supplement his claim
with ‘other evidence of retaliatory conduct to establish causality’” (quoting Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010))); see also Bryson v. Regis Corp., 498 F.3d
561, 571 (6th Cir. 2007) (holding that three-month time lapse between plaintiff’s request for
FMLA leave and her termination on the day she was scheduled to return to work established a
causal connection when paired with other evidence of retaliatory motive). Thus, since Stein was
terminated ten weeks after he began FMLA leave and cannot point to any additional evidence of
retaliation, his evidence of temporal proximity is not enough. See Mickey, 516 F.3d at 529
(Batchelder, J., concurring) (explaining that temporal proximity would be enough where the
“employer’s learning of the protected activity is so closely followed by the employer’s taking of
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an adverse action that the two are virtually contemporaneous”). The district court was thus
correct to grant Atlas summary judgment on Stein’s FMLA retaliation claim.
II.
Stein’s other set of claims arise under the Employee Retirement Income Security Act.
Stein’s son Jordan suffers from a debilitating neurological condition. Jordan had to be
hospitalized for four months in 2013, which turned out to be very expensive. Stein now argues
that his firing was in fact motivated, at least in part, by Atlas’s desire to rid itself of Jordan’s
large medical bills. And since Atlas’s employee health-care plan covered Jordan, Stein claims
that Atlas is liable for both retaliation and interference under ERISA. See 29 U.S.C. § 1140. To
prevail on his interference claim, Stein must show that Atlas fired him in order to interfere with
his ability to receive future benefits for Jordan under Atlas’s employee health-care plan. Smith v.
Hinkle Mfg., Inc., 36 F. App’x 825, 828 (6th Cir. 2002). And to prevail on his retaliation claim,
he must prove that his past claims under that plan were causally linked to Atlas’s decision to fire
him. Hamilton v. Starcom Mediavest Grp., Inc., 522 F.3d 623, 628 (6th Cir. 2008). Because
Stein relies upon the same set of facts to support these two claims, we address them together.
We again employ the McDonnell Douglas framework. Id.; Smith, 36 F. App’x at 828.
Initially, Stein bears the burden of making out his prima facie case of interference and retaliation.
Smith, 36 F. App’x at 828. If he succeeds, the burden shifts to Atlas to articulate a
nondiscriminatory reason for his firing. Id. And if Atlas does so, Stein must show that Atlas’s
proffered reason was in fact pretext for discrimination. See id.
Prima facie stage. Stein produced evidence sufficient to make a prima facie case of both
retaliation and interference. Atlas maintains a self-insured employee health-care plan with stop-
loss coverage. That means Atlas pays employees’ medical claims as they arise—rather than a
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single fixed premium to an insurance carrier—with a built-in ceiling on how much the company
will have to spend on any individual employee. Atlas appears to have spent over $500,000 on
Jordan’s medical expenses the year before Atlas fired Stein (about half of which was later
reimbursed by its stop-loss insurer).
Stein points to evidence suggesting that Atlas was concerned about high health-care
costs, and Jordan’s in particular. Both before and after Stein’s firing, Atlas publicly expressed its
worry about “skyrocket[ing]” health-care costs in a series of employee notices. R. 66-11, Pg. ID
1927–32. The company also made significant changes to its health-insurance offerings and stop-
loss coverage. While Jordan was hospitalized, Stein says that Atlas’s vice-president of
operations twice told him that he hoped Jordan would be released soon—because his care was
getting expensive for the company. And, around the same time, Atlas’s human resources
director purportedly told another employee that “astronomical payouts” were causing Atlas’s
health-insurance costs to go up—and showed the employee a document listing nearly one million
dollars in Jordan’s medical expenses.2 R. 72-1, Pg. ID 2487. This evidence is sufficient to make
Stein’s prima facie case. See Smith, 36 F. App’x at 827–30 (plaintiff made prima facie case
based partially on fact that supervisor told employee that “families like hers were the cause of
[employer’s] rising insurance costs and were a drain on the company” (internal quotation marks
omitted)); see also Trujillo v. PacifiCorp, 524 F.3d 1149, 1151, 1155–58 (10th Cir. 2008)
(plaintiff made prima facie case partially based on one executive’s comment that “90% of all
healthcare costs were incurred [by] only 10% of the employees” and evidence showing that the
2 Atlas suggests, in passing, that these statements are hearsay. But Atlas has not properly developed that argument, so it is forfeited. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997). In any event, because these statements were allegedly made by Atlas’s director of human resources concerning a matter within the scope of her employment, they would plainly fall under Federal Rule of Evidence 801(d)(2)(D) as being outside the definition of hearsay. See Fed. R. Evid. 80l(d)(2)(D) (“A statement that meets the following conditions is not hearsay: . . . [t]he statement is offered against an opposing party and: . . . was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed . . . .”).
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employees’ son was one of only two covered persons with a terminal illness); Dewitt v. Proctor
Hosp., 517 F.3d 944, 947–49 (7th Cir. 2008) (plaintiff made prima facie case of discrimination
where supervisors repeatedly inquired about employee’s husband’s cancer-treatment costs).
In response, Atlas argues that Stein’s supervisor neither knew the precise amounts of
Jordan’s medical costs nor had reason to try and cut those costs himself. But that supervisor
admitted that he knew about Jordan’s condition, and Stein points to circumstantial evidence
suggesting that he would have known Stein was a high-cost employee and had reason to do
something about it. Stein says that Jordan’s high health-care costs and their effect on Atlas’s
bottom line were common knowledge amongst Atlas employees, pointing to an alleged statement
from a coworker that “since [Jordan] was in the hospital, we’re not going to get a raise.” R. 60-
1, Pg. ID 372–75, 409–10. In addition, Stein’s direct supervisor was not the only Atlas
employee involved in Stein’s firing. Both Atlas’s vice-president of operations and its human
resources director played a role. For instance, the day before Stein was terminated, Stein’s
supervisor discussed Stein’s three days of absences with Atlas’s human resources director. The
human resources director confirmed that Stein was released to work as of July 20. And
immediately after Stein’s supervisor fired him, Stein spoke with Atlas’s vice-president of
operations and asked him to reconsider the termination decision. The vice-president of
operations refused to reconsider that decision. And Stein alleges that both the human resources
director and the vice-president of operations made comments indicating their displeasure with
Jordan’s medical costs. So Stein’s supervisor’s purported ignorance about the details of Jordan’s
claims does not undermine his prima facie showing. See Trujillo, 524 F.3d at 1156 (“While
PacifiCorp seems to suggest the Trujillos needed direct evidence that the company was
monitoring the individual costs being incurred by the Trujillos’ son for medical treatment, they
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only needed to present enough evidence for a reasonable inference of that premise to arise.”
(internal quotation marks and citation omitted)).
Atlas also argues that the temporal proximity between Jordan’s uptick in medical
expenses and Stein’s firing—about seven months—is too long to support Stein’s prima facie
case. But the case Atlas cites for this proposition holds only that “there is a consensus that
proximity alone generally will not suffice where the adverse action occurs more than a few
months . . . after the protected conduct.” Hamilton, 522 F.3d at 629 (emphasis added). And as
discussed, Stein has “provide[d] additional evidence of causation” beyond temporal proximity.
Id. at 629–30 (emphasis added). What is more, the evidence suggests that Atlas continued to
process and pay claims for Jordan’s care after his release from the hospital, and that Atlas’s
decisionmakers knew Jordan’s condition to be permanent and deteriorating. So even though
seven months had passed since Jordan’s most recent hospitalization, a reasonable juror could
infer that Atlas’s decision-makers were motivated by the prospect of future medical costs.
Legitimate business reason and pretext. Since Stein has made his prima facie case of
retaliation and interference, the burden shifts to Atlas to provide a non-discriminatory reason for
his firing. It has: His failure to return to work or call in after his doctor released him for light
duty. Thus it is Stein’s turn once more. Stein “need not show that the employer’s sole purpose
was to interfere with [his] entitlement to benefits” or to retaliate, but instead that a reasonable
jury could find that unlawful considerations were a “motivating factor” in its actions. Smith v.
Ameritech, 129 F.3d 857, 865 (6th Cir. 1997) (ellipses omitted and emphasis added) (quoting
Shahid v. Ford Motor Co., 76 F.3d 1404, 1411, 1413 (6th Cir. 1996)); Humphreys v. Bellaire
Corp., 966 F.2d 1037, 1043 (6th Cir. 1992). Plaintiffs usually demonstrate pretext by “showing
that the employer’s stated reason for the adverse employment action either (1) has no basis in
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fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action.” White
v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008).
Stein’s evidence is sufficient to establish pretext at the summary-judgment stage. As
discussed above, Atlas says it terminated Stein for one reason: his failure to report or call in for
three consecutive days after his doctor released him for light-duty work. But while this rationale
does not run afoul of the FMLA, a reasonable juror could find that it masks Atlas’s intent to
violate Stein’s rights under ERISA.3 Stein had worked at Atlas for nearly twenty years, had won
at least one perfect attendance award, and had worked overtime when asked. He seems to have
been a satisfactory employee. But as the three days after his release to light duty rolled by, Atlas
reached out only to Stein’s doctor and Atlas’s third-party administrator for workers’
compensation claims—just to double-check that Stein had really been released. And even
though Atlas’s employee handbook indicates that Stein had to “complete a return to work fitness
exam and drug screen prior to returning to work” that “[would] be scheduled by the Human
Resource department,” R. 62-3, Pg. ID 858, the company did not schedule Stein’s drug screen
before it fired him. See DeBoer v. Musashi Auto Parts, Inc., 124 F. App’x 387, 394 (6th Cir.
2005) (“[A]n employer’s failure to follow a policy that is related to termination or demotion can
constitute relevant evidence of pretext.” (citing Skalka v. Fernald Envtl. Restoration Mgmt.
Corp., 178 F.3d 414, 421–22 (6th Cir. 1999))). Although Atlas was not required to reach out to
Stein, for reasons set out in the FMLA-interference discussion above, the fact that it did not do
so could still raise a juror’s suspicions about Atlas’s motives. And while Atlas claims that this
was all just standard practice—pointing to a list of fifty-five employees that the company
terminated under its no-call, no-show policy in the past twenty or so years—Atlas’s list only
3 Atlas’s reliance on its notice policy does not amount to an “unusual circumstance” under the FMLA’s regulations, for the reasons explained above. But that question is different from the inquiry guiding resolution of Stein’s ERISA claims: whether reliance on the notice policy merely shielded Atlas’s unlawful motives.
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includes names and dates. It does not indicate whether these fifty-five terminations are
otherwise similar to Stein’s in the relevant respects. And Stein, for his part, has pointed to
evidence suggesting that his superiors selectively enforced the absenteeism policy by calling
some employees to “ask what’s up” when they failed to show up for work, but not others.
In combination with Atlas’s documented concerns about skyrocketing health-care costs
and its managers’ purported comments about Jordan’s claims, this evidence permits an inference
that Atlas was motivated at least in part by its desire to be free from a medical-cost albatross. At
trial, Stein could paint a picture suggesting that Atlas, concerned about Jordan’s medical
expenses, simply bided its time and waited—Gotcha! style—for Stein to make a mistake. And
then, when he did, the company jumped at the chance to cut him loose. This is a story that, in
view of the evidence, a reasonable jury could believe. So Stein should have the chance to tell it.
The district court thus erred in granting Atlas summary judgment on Stein’s ERISA claims.
***
We AFFIRM the district court’s dismissal of Stein’s FMLA interference and retaliation
claims, REVERSE its dismissal of his ERISA claims, and REMAND for further proceedings
consistent with this opinion.
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ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in
part. Because I would affirm the district court in its entirety, I must respectfully dissent from
Section II of the majority opinion, deciding the ERISA claim. I concur in the remainder.
As for that ERISA claim, the district court based its decision on an undisputed fact and an
established legal principle. The fact: Mark Toeppe, Stein’s direct supervisor, made the decision
to fire Stein. The legal principle: for a plaintiff to prove that an employer discharged him in
violation of ERISA § 510, he must show that the decision maker “acted with the specific intent
to violate ERISA.” Stein v. Atlas Indus., Inc., No. 3:15-cv-00112, 2017 WL 2720339, at *14
(N.D. Ohio June 23, 2017) (citing cases). From this, the district court explained that the plaintiff,
Stein, had to show that the decision maker, Toeppe, must have known the details of Stein’s
healthcare claims for those claims to have motivated the termination decision. After thorough
review of Stein’s proffered evidence, the district court held that “the record fails to show that it is
more likely than not that Mr. Toeppe . . . knew about [Stein]’s ERISA-protected activities—
namely, the costs of [his son] Jordan’s medical claims.” Id. at *14. Consequently, the court held
that Stein could not prove a causal connection sufficient to make out a prima facie case.
Based on my careful review of the record, I likewise find that Stein has produced no
evidence from which a juror could reasonably find that Toeppe knew or believed that Jordan’s
specific medical costs were detrimental to Atlas, or that any such perception motivated Stein’s
firing in any way. Stein argues, and the majority appears to agree, that genuine questions exist as
to whether Toeppe knew about the medical claims, and argues that Toeppe could have or should
have drawn that inference from other things that he could have or should have known. But
neither Stein nor the majority points to any specific record evidence that would prove that
Toeppe necessarily knew of Jordan’s particular medical costs, much less that Toeppe had the
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specific intent to violate ERISA that is necessary under the standard. Stein also argues, and
again the majority appears to agree, that genuine questions exist as to whether Toeppe was the
ultimate decision maker, arguing that Clark and Miller were also involved. But again, neither
Stein nor the majority offers specific evidence to support this; they instead just pile inference on
inference. As I see it, these questions, such as they are, do not make Stein’s prima facie case.
Even if Stein could prove his prima facie case, Atlas provided evidence that Toeppe fired
Stein pursuant to Atlas’s established employment policy, under which Stein’s failure to return to
work or call in for three consecutive days triggered an automatic discharge. This is a legitimate,
non-discriminatory reason and the issue becomes a question of pretext. Ordinarily, a plaintiff
“demonstrate[s] pretext by showing that the employer’s stated reason for the adverse
employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is
insufficient to explain the employer’s action.” White v. Baxter Healthcare Corp., 533 F.3d 381,
393 (6th Cir. 2008). We have, however, also held, albeit less frequently, that a plaintiff may
“demonstrate pretext[] by offering evidence that challenges the reasonableness of the employer’s
decision, to the extent that such an inquiry sheds light on whether the employer’s proffered
reason for the employment action was its actual motivation.” Rachells v. Cingular Wireless
Employee Servs., 732 F.3d 652, 668 (6th Cir. 2013). “Regardless of which option is used, the
plaintiff retains the ultimate burden of producing sufficient evidence from which the jury could
reasonably reject the defendants’ explanation and infer that the defendants intentionally
discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (editorial
marks omitted).
In framing its pretext analysis, the majority relies on a 1997 opinion in which we asserted
the proof-of-pretext standard as requiring the plaintiff to prove merely that “the interference was
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a motivating factor in the employer’s actions or prove that employer’s proffered reason is
unworthy of credence.” Smith v. Ameritech, 129 F.3d 857, 865 (6th Cir. 1997). My impression
of our case law is that the cases cited in the foregoing paragraph have moved us on from this
ambiguous, 20-year-old standard and that proof of pretext currently requires more than a mere
possible, partial motivation.
Regardless of how we frame the test, the majority essentially concludes that Stein’s
showing of pretext comes from “evidence that challenges the reasonableness of [Toeppe]’s
decision,” such that the otherwise legitimate, non-discriminatory reason for firing Stein was not
Toeppe’s “actual motivation.” See Rachells, 732 F.3d at 668. Specifically, the majority asserts
that a jury could question the reasonableness of Toeppe’s decision to fire Stein, and hence his
true underlying motivation, because Stein was a “satisfactory employee” of 20 years and Toeppe
did not attempt to investigate a possible mistake by contacting Stein before he fired him.
As support for this assertion, the majority invites the jury to consider irrelevant factors
and reverses the burden of proof. First, the majority says that even though Toeppe was not
required to reach out to Stein, his failure to do so would justify a juror’s suspicions about his
motive. I do not agree. If Toeppe’s unexplained and unexamined failure to reach out to Stein
with an inquiry or a warning, when he was not required to do so, justifies a juror’s finding of a
bad motive, then anything could justify such a finding and this is no standard at all. Suppose
Toeppe had called Stein only once, rather than twice or multiple times, or had called repeatedly
but left no messages, or had called but sent no letter, or had thought someone else at Atlas had
called but did not pursue it to be certain. What should be the standard for deciding when a
defendant’s failure to undertake a gratuitous act shows an ill motive? Suppose Toeppe were
shown to be a grinch who steals Christmas gifts from orphans. That certainly would lead to
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suspicions about Toeppe’s motives, but in a court of law it is irrelevant to whether Toeppe fired
Stein with the intent to violate ERISA, just as Toeppe’s failure to go beyond his required duty is
irrelevant to that intent, at least for purposes of a juror’s decision.
The majority also faults Atlas for failing to prove that the firing was not pretextual,
asserting that, although Atlas claimed that this firing was standard practice and provided a list of
55 employees it had fired under this policy, Atlas did not provide proof that the 55 firings were
sufficiently similar to Stein’s in all relevant respects. This not only adds an additional—fourth—
step to the established three-step burden shifting framework, it directly contradicts our
established law, which holds that the plaintiff “retains the ultimate burden” of producing
sufficient evidence from which the jury could reasonably reject the defendant’s legitimate, non-
discriminatory reason and infer pretext. Johnson, 319 F.3d at 866.
All in all, I believe the majority has taken an improper approach to evaluating pretext and
sets a bad, new precedent. Both “factors” are improper considerations for the jury and the
second appears to reverse the burden of proof from requiring the plaintiff to prove pretext to now
requiring the defendant to prove that its legitimate, non-discriminatory reason is also not
pretextual. I believe that we cannot and should not change our established pretext standard.
Finally, I will mention that I disagree with the majority’s footnote 2, in which it says that
Atlas forfeited its argument that certain of Stein’s proffered statements are actually inadmissible
hearsay in violation of Federal Rules of Evidence 801 and 802. The majority says that forfeiture
is warranted because “Atlas has not properly developed that argument,” which leads to questions
of what argument is necessary or what development would be sufficient. When Stein introduced
those statements in the district court, Atlas objected on the basis that the statements were hearsay
in violation of Rules 801 and 802. That was a sufficiently developed argument in the trial court
- 17 - Case No. 17-3737, Stein v. Atlas Indus., Inc.
and I fail to see what further argument need be developed here—the statements are either
hearsay or not. Moreover, given that this is the appellee’s assertion and we may affirm on any
basis supported by the record, the invocation of forfeiture is oddly out of place in this context.
For all of these reasons, I respectfully dissent from the majority’s decision as to the
ERISA claim and would instead affirm the judgment of the district court in its entirety.
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