                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0172n.06

                                            No. 09-4094
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                              Mar 23, 2011
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


DEMOND HILL,                                              )
                                                          )
       Plaintiff-Appellant,                               )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE SOUTHERN
                                                          )        DISTRICT OF OHIO
AIR TRAN AIRWAYS,                                         )
                                                          )
       Defendant-Appellee.                                )
                                                          )



BEFORE: COLE, GIBBONS, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Demond Hill appeals a grant of summary judgment in favor of Air

Tran Airways, his former employer, in this action for race discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and O.R.C. § 4112.02(l). Because Hill

presented evidence from which a jury could infer that Air Tran’s reasons for terminating his

employment were pretextual, there is a genuine issue of material fact as to whether Air Tran engaged

in unlawful retaliation, such that a grant of summary judgment was not warranted.

                                                  I

       In September 2005, Hill began working for Air Tran as a customer service agent (CSA) in

the Dayton airport. He worked the first shift, from 4:00 A .M . to 1:00 P .M ., checking in customers,

loading luggage, and selling upgrades. Hill was one of five African-American employees at Air

Tran’s Dayton station. His direct supervisor was Tim Thornton, a Caucasian male who supervised
No. 09-4094
Hill v. Air Tran Airways


all first-shift CSAs. Thornton’s supervisor was Linda Hughes, an African-American female, who

was the station manager.

       Hill and Thornton did not get along. On June 11, 2006, Hill sent a letter to Air Tran’s

Human Resources department accusing Thornton of racial bias. One month later, Air Tran issued

a final warning letter to Hill in response to “a long, loud, and totally unprofessional confrontation

with another crew member.” The letter cited three prior instances in which Hill had been

reprimanded for misconduct: (1) on March 11, 2006, Hill was late for work and argued with his

supervisor over his clock-in time; (2) on March 12, 2006, Hill was reported for arguing with a

coworker in the presence of passengers; and (3) on March 19, 2006, Hill was reported for arguing

with a passenger about an infant traveling on that passenger’s flight. The letter warned that any

additional incidents could result in termination and was placed in Hill’s personnel file.1

       No other reports of misconduct involving coworkers or passengers were made against Hill

before his suspension on April 10, 2007. Hill alleges that Thornton meanwhile harassed and

discriminated against him because of his race by inconsistently enforcing company rules more

strictly against him than against white CSAs. Hill claims that Thornton gave white employees

breaks freely, allowed white employees to wear hats (against company dress policy), and allowed

white employees to eat at the ticket counter. Another African-American CSA, Aaron Neely, testified

that Thornton did not like Hill, and was known to “pick on people” and assign undesirable jobs to


       1
        Hill denies that each of these incidents occurred, and claims that at most they are subjective
accounts of the events and are therefore subject to interpretation. Hill also claims that he never
received a copy of the final warning letter containing these reported incidents.

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employees he did not like. According to Neely, the majority of employees Thornton “picked on”

were black, and there was a visible pattern of discriminatory treatment by Thornton.

        Hill repeatedly complained of this treatment to Hughes (the station manager). According to

Hill, Hughes urged Hill to keep his complaints “in house,” and warned that he could be fired for

complaining. Nevertheless, on November 9, 2006, Hill filed a formal complaint about Thornton’s

treatment, describing the allegedly inconsistent enforcement of rules regarding break times,

wardrobe, and schedule. The complaint also described a November 4, 2006 incident in which

Thornton allegedly raised his voice at Hill and “got in his face.” Although Air Tran determined that

Thornton’s behavior did not constitute discrimination or harassment, the company warned Thornton

that further inappropriate action would be grounds for termination.

        Events on April 10, 2007, culminated in Hill’s suspension. That morning, Hill was assigned

to work as the primary ticket counter agent for three flights taking off at 6:00 A .M ., 7:00 A .M ., and

8:00 A .M . Three other CSAs, Melissa Beard, Brandon Fenton, and Henry Chaffin, were assigned

to work those flights by supporting Hill at the ticket counter, and then loading bags onto the plane

thirty minutes before takeoff. Around 6:15 A .M ., Hill took a fifteen-minute coffee break, and left the

other CSAs to finish the check-in for the 7:00 A .M . flight.2 Hill claims that he had already checked

in all but two passengers on this eighty-passenger flight. After returning from his break, Hill began


        2
         Hill alleges that taking fifteen-minute breaks during early morning operations, though not
company policy, was standard practice as long as the line of passengers waiting to be checked in was
short and the ticket counter was covered by another CSA. Hughes and Thornton, on the other hand,
testified that taking breaks during check-in was not standard practice, especially during early
morning operations.

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Hill v. Air Tran Airways


the check-in for the 8:00 A .M . flight. Hill complained to Thornton that he had to complete the check-

in by himself, because Fenton and Chaffin had taken a break and refused to help. Thornton said he

would deal with the issue later. Hill then confronted Beard, Fenton, and Chaffin in the bag room.

Hill phoned Thornton a second time to report this confrontation, and Thornton alleges that Hill

abruptly hung up on him. Hill denies hanging up on Thornton.

       Thornton immediately reported the incident to Hughes in an email, stating: “I am not going

to tolerate this kind of abuse at work and do hope you will reprimand him in some sort of way. If

not I will be forced to and see that it is followed through.” Hughes took statements from Hill,

Fenton, and Chaffin about the events that transpired, but the three gave conflicting accounts. Hughes

then met with Hill around 11:00 A .M . that morning. She informed Hill that he was being suspended

and that she would recommend termination.

       Later that day, Hill sent Hughes an email in which he again complained about Thornton.

That same day, Hughes recommended to Human Resources that Hill be terminated. Human

Resources sent Hill a letter of termination on April 13, 2007, citing as grounds for termination the

April 10, 2007 events and “four different occasions” on which Hill had been warned about his

conduct.3 Human Resources also issued written warnings to Fenton and Chaffin for their failure to

assist Hill with the 8:00 A .M . check-in, but Fenton and Chaffin were not suspended or otherwise

disciplined.


       3
         Presumably, this referred to the three March 2006 incidents and the “long, loud, and totally
unprofessional confrontation with another crew member” that was the subject of the final warning
letter on July 11, 2006.

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       Hill alleges that during his conversation with Hughes on April 10, Hughes stated that Hill

was being suspended for insubordination (for hanging up on Thornton). Hill claims that Hughes also

said, “I’m tired of you and Tim [Thornton], I’m tired of your complaints against Tim,” and that she

“bet” Hill would return to her office with further complaints within thirty days. Although she could

not recall making these statements, Hughes admitted that she was irritated by Hill’s complaints.

Hughes testified, however, that the complaints were not the deciding factor in the termination

decision and that Thornton’s email suggesting that Hill be reprimanded did not have an impact on

her decision.

       After unsuccessfully pursuing his claims before the Ohio Civil Rights Commission and the

EEOC, Hill filed suit in state court, alleging race-based discrimination, retaliation, wrongful

discharge, and emotional distress. Air Tran removed the case to federal court and moved for

summary judgment. Upon consent of the parties, the case was referred to a magistrate judge, who

granted summary judgment in favor of Air Tran on all counts. Hill filed objections, which the

magistrate judge construed as a motion to amend the judgment. See Fed. R. Civ. P. 59(e). The

magistrate judge then denied the motion, and Hill now appeals.

                                                 II

       The only issue on appeal concerns whether Air Tran unlawfully terminated Hill in retaliation

for an activity protected under Title VII. Contrary to the district court’s conclusion, there is a

genuine issue of material fact as to whether Air Tran engaged in unlawful retaliation. Although it




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Hill v. Air Tran Airways


is a close question, Hill has presented evidence from which a jury could infer that Air Tran’s reasons

for terminating his employment were pretextual.

        To make out a prima facie case of retaliation under the familiar McDonnell Douglas standard,

Hill needs to establish that: “(1) he engaged in activity protected by Title VII; (2) the exercise of his

civil rights was known to the defendant; (3) thereafter, the defendant took an employment action

adverse to [Hill]; and (4) there was a causal connection between the protected activity and the

adverse employment action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Once

Hill establishes a prima facie case of retaliation, the burden shifts to Air Tran to articulate a

legitimate, nondiscriminatory reason for its actions. Virts v. Consol. Freightways Corp. of Del., 285

F.3d 508, 521 (6th Cir. 2002). And if Air Tran articulates such a reason, the burden shifts back to

Hill to show that the given reason was a mere pretext for retaliation. Id.

        The district court did not reach this burden-shifting analysis because it found that Hill had

not made out a prima facie retaliation case. On de novo review, however, we consider all three steps

of the burden-shifting framework to determine whether Hill has met his burden of showing that Air

Tran’s reasons for discharging him were a mere pretext for retaliation.4


        4
         In his objections to the district court’s Decision and Order, Hill asserted for the first time
that he could survive summary judgment under a mixed-motive theory by showing that the decision
to terminate his employment was at least in part motivated by his protected actions. See White v.
Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008). The district court refused to consider
this claim because “a motion under Rule 59(e) is not an opportunity to re-argue a case.” Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Similarly, Hill may
not raise on appeal a new argument that was not properly raised below. See Thurman v. Yellow
Freight Systems, Inc., 90 F.3d 1160, 1172 (6th Cir. 1996). Thus, Hill’s mixed-motive claim is not
properly before this court.

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Hill v. Air Tran Airways




                                                 A

       The district court properly found that Hill had established the first three elements of a prima

facie retaliation case. First, no one disputes that Hill complained to Hughes and to Air Tran’s

Human Resources department about Thornton’s alleged race-based discrimination. This is protected

activity under Title VII. See 42 U.S.C. § 2000e-3(a). Second, Air Tran was clearly aware of Hill’s

exercise of his civil rights. Hughes was the manager who dealt with most of Hill’s complaints, and

she testified that she was also aware of the formal complaint submitted to Human Resources. Third,

Hill’s termination on April 13, 2007 undeniably qualifies as an adverse action.

       Contrary to the district court’s conclusion, however, Hill presented sufficient evidence from

which a jury could infer that Hughes fired Hill because he was engaging in protected activity. A jury

could infer retaliatory motive from the temporal proximity between Hill’s complaints of

discrimination and the company’s decision to terminate him; from Hughes’ comments leading up

to and during the April 10 meeting; and from the fact that similarly situated employees who did not

complain were treated more favorably than Hill was. Drawing all factual inferences in Hill’s favor,

see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), this evidence sufficed to establish

the causation element of a prima facie retaliation case.

       “Where an adverse employment action occurs very close in time after an employer learns of

a protected activity, such temporal proximity between the events is significant enough to constitute

evidence of a causal connection.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.


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Hill v. Air Tran Airways


2008). Although prior to the incident on April 10, 2007, Hill had not formally complained about

Thornton in over five months, it is undisputed that Hill complained about Thornton only a few days

before the termination. Hill complained to Hughes about Thornton on April 10, 2007, the day of the

last incident with Thornton and a few days before Hill’s termination on April 13. Hill also

complained about Thornton in an email to Hughes on April 10, the same day Hughes recommended

Hill’s termination.5 Although these complaints were informal, they are relevant to an assessment

of temporal proximity. Morever, this was not the first time that Hill had been disciplined in close

proximity to making a complaint. One month after Hill sent a letter to Human Resources accusing

Thornton of racial bias, the company issued Hill a final warning letter.

       Evidence of temporal proximity should not be viewed in isolation. See Mickey, 516 F.3d at

525-26. Even if Hill’s complaints had been removed in time from the date that he was fired, there

is evidence that they were not far removed from Hughes’ mind when she made the decision to

terminate him. According to Hill’s testimony, Hughes encouraged him to keep his complaint against

Thornton “in house” in November 2006, and warned Hill that both he and Thornton could be fired

if Hill contacted Human Resources. Additionally, Hill points out that when Hughes informed him

about the suspension, she stated that she was “tired of [his] complaints against Tim,” and that she

“bet” Hill would be back in her office within thirty days with more problems. This evidence is

largely undisputed. Although Hughes could not recall telling Hill that she was “tired” of his


       5
        It is not clear from the record whether Hughes received Hill’s email before or after she
recommended termination on April 10. If Hill complained to Hughes before she recommended
termination, then that is additional evidence of retaliatory motive.

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Hill v. Air Tran Airways


complaints, she did recall Thornton’s email stating, “I am not going to tolerate this kind of abuse at

work and do hope you will reprimand [Hill] in some sort of way,” and she admitted that she was

irritated by Hill’s complaints.

       Considering the circumstances in which these comments were made, and taking Hill’s

testimony as true, a jury could infer that Hughes acted with a retaliatory motive. Hughes’ statement

that she was “tired” of Hill’s complaints against Thornton was made by someone who was in the

decision-making chain of authority. See Morgan v. New York Life Ins. Co., 559 F.3d 425, 432 (6th

Cir. 2009). As Hill’s manager, Hughes had the authority to convene the April 10 meeting, to

suspend Hill’s employment, and to recommend his termination to Human Resources. Indeed, this

comment was made during the decision-making process itself, at the very meeting in which Hill

learned that he was being suspended, and in close proximity to the act of termination on April 13,

2007. See id. Hughes’ remarks, together with Air Tran’s history of disciplining Hill around the

same time that he complained of race-based discrimination, are therefore sufficient to establish the

causation element of a prima facie retaliation case.

                                                  B

       Because Hill made out a prima facie case under the McDonnell Douglas standard, the burden

shifted to Air Tran to produce a legitimate, nondiscriminatory reason for its action. Air Tran

maintains that Hill was fired for poor performance. Air Tran argues that Hill was terminated for

taking an unauthorized break and for refusing to assist his coworkers on April 10, 2007—both

allegedly violations of company policy. The company also cited “four different occasions” on which


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Hill v. Air Tran Airways


Hill had been warned about his “[d]isrespectful, abusive or unprofessional conduct with customers

[and] Crew Members.” The district court viewed the events of April 10 as “just the last straw in a

long line of misconduct.” The record supports that view of the evidence.

       The record includes: (1) a disciplinary report against Hill for arguing with a supervisor

regarding clock-in time on March 11, 2006; (2) a disciplinary report for yelling at another crew

member on March 12, 2006; (3) several handwritten statements from Air Tran employees

documenting an incident involving a yelling outburst between Hill and a fellow employee; and (4)

multiple disciplinary reports for Hill regarding bag-check errors, late arrivals, and unexplained

absences. A jury could find that these were legitimate, nondiscriminatory reasons for terminating

Hill. The company’s proffered reasons therefore suffice to meet its burden under the McDonnell

Douglas standard.

                                                  C

       Assuming, then, that Air Tran met its burden of producing legitimate, nondiscriminatory

reasons for Hill’s termination, the burden shifted back to Hill to discredit those reasons. Hill could

meet his burden of showing that Air Tran’s explanations were pretextual by producing evidence that

“(1) they had no basis in fact, (2) they did not actually motivate the company’s decision or (3) they

did not suffice to motivate that decision.” Cline v. BWXT Y-12, LLC, 521 F.3d 507, 509 (6th Cir.

2008). Hill has produced enough evidence to raise a question about whether Air Tran’s proffered

explanations were a pretext for retaliation for at least one of these reasons.




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       First, Air Tran’s proffered reasons are based on facts that are disputed. Hill disputes both

Air Tran’s version of the events on April 10, 2007, and the three disciplinary incidents that allegedly

occurred in March 2006. In fact, Hill maintains that he was actually a model employee. One

coworker (Aaron Neely) testified that Hill was “one of [Air Tran’s] good workers,” an employee

who had “a lot of experience, a lot of motivation,” and who treated customers “in a friendly manner.”

Although there is also evidence that Hill had problems with coworkers other than Thornton, the facts

on which Air Tran claims its decision was based are not uncontested.

       Second, the evidence presented by Hill raises a question about whether these facts, even if

true, actually motivated the company’s decision. Hughes testified that the issues between Hill and

Thornton were not motivating factors for her decision. But that testimony is undermined by her

comment that she was “tired” of Hill’s complaints about Thornton and that she “bet” Hill would be

back in her office to complain again within thirty days. Hughes also testified that she considered

Hill’s personnel file, which contained reports of incidents with Thornton and others. But this file

contained both Hill’s disciplinary history and his complaints against Thornton.            Under the

circumstances, the question of whether Hughes was motivated by Hill’s disciplinary history, and not

by his complaints of race discrimination, is one for the trier of fact.

       Third, the evidence raises a question as to whether Air Tran’s proffered explanation suffices

to motivate its decision to terminate Hill. Hill disputes whether “taking a break” is sufficient

grounds for termination. Even if breaks were technically against the rules, Hill argues that there was

an informal custom of tolerating breaks as long as they did not interfere with customer service. Air


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Hill v. Air Tran Airways


Tran relies on Hughes’s deposition testimony as evidence of a formal policy that breaks could not

be taken during check-in for a flight, especially during the early morning operations. But Hill claims

that he and other CSAs took breaks at their discretion, and that enforcement of the rule against

breaks was inconsistent and discriminatory.

        What is more, Hill argues, his coworkers Fenton and Chaffin also took a break on April 10,

2007, and refused to help him during the early morning check-in. Yet Fenton and Chaffin were not

terminated and were instead given only written warnings. The magistrate judge concluded that Hill

had failed to show that similarly situated employees were treated differently. But it is not obvious

that Hill and Chaffin were not similarly situated. Although Fenton had begun working for Air Tran

on April 4, 2007, just days before the incident, and therefore did not yet have a disciplinary record,

Chaffin had worked for Air Tran for more than a year and had a disciplinary record that in some

respects resembled Hill’s. Chaffin had been given several warnings for bag-check errors, making

an untimely deposit, missing a shift, and having an incomplete fuel log, although he had not been

given a final warning and had not been cited for improper behavior toward coworkers or customers.

Under the circumstances, whether Chaffin’s disciplinary history is so dissimilar to Hill’s that Hill

has failed to show that other similarly situated employees were treated differently presents a genuine

issue of fact.

                                                 III

        For these reasons, we reverse the grant of summary judgment.




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