                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0385n.06
                             Filed: June 27, 2008

                                            No. 07-5303


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

TONY L. EVANS,

       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
PROSPECT AIRPORT SERVICES, INC.,                       MIDDLE DISTRICT OF TENNESSEE

       Defendant-Appellee.

                                                /




BEFORE:        SUHRHEINRICH, CLAY, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff, Tony L. Evans (“Evans”), appeals the district court’s grant

of summary judgment in favor of Defendant, Prospect Airport Services (“Prospect”), on Evans’

unlawful retaliation claim brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. § 2000e et seq. (2000). In particular, Evans challenges the district court’s determination

that he has not demonstrated a prima facie case of retaliation due to his failure to produce evidence

of a causal link between his filing of complaints with the Equal Employment Opportunity

Commission (“EEOC”) and Prospect’s termination of his employment. For the reasons that follow,

we AFFIRM the judgment of the district court.

                                        I. BACKGROUND
                                            No. 07-5303

A.       Factual Background



         Prospect provides skycap, wheelchair, and other passenger services at various airports across

the country. From August 29, 2001 through November 9, 2005, Evans, an African-American male,

was employed by Prospect as a passenger service assistant at Nashville International Airport. In this

capacity, Evans helped elderly or disabled airline passengers get into wheelchairs and then escorted

them to and from gates within the airport. Evans was supervised in his duties by Robert Strobel

(“Strobel”), one of Prospect’s employee managers, and by Kathy Lawson (“Lawson”), an assistant

manager.

         During the first two years of his employment, Evans received only two written warnings for

job performance issues. On November 29, 2002, Strobel issued Evans a written warning for starting

his shift early in violation of Prospect’s policies. Likewise, on November 19, 2003, Strobel gave

Evans a written warning for failing to wear the proper uniform.

         On May 25, 2004, Strobel issued Evans a third written warning for violating Prospect’s dress

code policy. On the same day, Evans filed a complaint with the EEOC alleging that, during the

course of his employment with Prospect, he had been discriminated against because of his race.

Specifically, Evans claimed that, because of his race, (1) he had been denied pay for some of the

hours that he had worked, and (2) he had been required to pay for his own work uniform while others

were not. As a result of this EEOC charge, Prospect subsequently performed a complete audit of

Evans’ time records from August 2001 to July 2004 and sent Evans a check for $179.25 in back

wages.


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                                             No. 07-5303

          During the months following Evans’ May 24, 2004 EEOC complaint, Prospect issued Evans

several written warnings for a variety of performance deficiencies, the factual basis for some of

which Evans has contested.

          On June 11, 2004, Strobel issued Evans a written warning for (1) calling in after his shift

began to inform Strobel that he would be late, and (2) ultimately failing to show up to work. The

warning letter informed Evans that “if this happens again disciplinary actions will be taken.” J.A.

at 346.

          On July 23, 2004, Lawson sent Evans a written warning, which was followed by a three-day

suspension, for wearing jewelry on the outside of his uniform in violation of Prospect’s policies.

The warning/suspension letter noted that Evans had been given “several verbal warnings” about

wearing jewelry outside his uniform and requested that Evans simply “put [his] necklaces inside [his]

shirt and not hanging on the outside of [his] uniform.” J.A. at 347. At his deposition, Evans

admitted that he had received this warning and suspension, but denied that he had received any prior

verbal warnings. Evans further indicated that he felt the disciplinary action was unfair and retaliatory

because, according to Evans, he had worn his jewelry in that fashion since he started working for

Prospect and had never been requested to take it off.

          On July 26, 2004, Lawson issued Evans another written warning and three-day suspension

for the “use of racial remarks toward his co-workers” while talking on Prospect’s airport radio

communications system. J.A. at 348. Later that same day, Lawson sent Evans a letter indicating,

that, after having consulted with Ronald Claypool, Prospect’s Human Resources Manager, she had

decided to reduce the suspension to one day. At his deposition, Evans acknowledged that he had


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                                           No. 07-5303

referred to his co-workers as “foreigners” or “foreign guys,” but stated that he felt his comments

were not “racial remarks” and were not inappropriate. J.A. at 199-200.

        On September 3, 2004, Strobel allegedly issued Evans a written warning for pushing

wheelchairs before his shift began. According to Strobel, when he informed Evans that he was about

to give Evans a written warning, Evans became “very loud and started yelling at” Strobel. J.A. at

350. For this alleged insubordination, Evans was also given another one-day suspension. At his

deposition, Evans testified that he did not recall ever receiving such a warning and denied that the

underlying event occurred.

        On September 29, 2004, Strobel issued yet another written warning to Evans for using his

cell phone while pushing a passenger in a wheelchair and for failing to fasten the passenger’s

seatbelt. The warning letter purported to remind Evans that talking on the cell phone while pushing

wheelchairs and failing to fasten passenger seatbelts is against Prospect’s policies. The letter also

noted that Evans was the only wheelchair pusher who had customers refusing to wear seatbelts and

informed Evans that “this needs to change.” J.A. at 353. At his deposition, Evans denied that he

was pushing a passenger when he was seen talking on his cell phone and instead claimed that he was

being singled out for punishment because, according to Evans, many other employees use their cell

phones at work. Evans did concede, however, that he had not followed company policy with regard

to the seatbelt issue.

        On October 21, 2004, a female co-worker lodged a sexual harassment complaint against

Evans with Prospect’s Human Resources Department alleging that Evans had made a statement in

her presence about having “only had one other white woman.” J.A. at 61, 77. On October 25, 2004,


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                                            No. 07-5303

Claypool called Evans as part of his investigation of the complaint. According to Claypool, Evans

refused to discuss the incident and hung up the phone. As a result of this alleged failure to cooperate

with the harassment investigation, Claypool placed Evans on a five-day suspension, but informed

Evans that the suspension would end immediately if Evans were willing to cooperate with the

investigation. On October 29, 2004, Claypool sent a letter to Evans informing him that no clear

determination could be made on the sexual harassment allegation and that he could return to work

on November 1, 2004. At his deposition, Evans challenged Claypool’s account of their conversation.

Evans testified that he first denied making the alleged comment, then informed Claypool that he

didn’t want to discuss the matter further, and finally hung up the phone.

       On November 1, 2004, the same day on which he returned to work following this five-day

suspension, Evans filed a second EEOC complaint alleging that he was being retaliated against for

filing his first complaint by way of the numerous suspensions and written warnings listed above.

       In the months following this second EEOC complaint, Evans again received written warnings

and suspensions for performance issues. On November 4, 2004, Strobel issued Evans a written

warning for wearing excessive jewelry in violation of Prospect’s uniform policies. Likewise, on

December 21, 2004, Strobel issued Evans a five-day suspension for pushing a wheelchair passenger

in a moving walkway in violation of both Prospect’s and the airport’s policies. The suspension letter

further informed Evans that “any future infractions of Rules and Regulations will require stronger

disciplinary actions to be taken and such disciplinary actions can include termination of your

employment.” J.A. at 355. At his deposition, Evans admitted to having pushed the wheelchair




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                                           No. 07-5303

passenger on the moving walkway, but claimed that he did not know this was a violation of airport

policy despite the fact that signs prohibiting such behavior are posted near each walkway.

       On the same day as he received this five-day suspension, Evans filed a third EEOC complaint

alleging new instances of race discrimination and unlawful retaliation. In particular, Evans claimed

that his five-day suspension for pushing a wheelchair on the moving walkway was discriminatory.

A few months later, Evans was again issued several written warnings for performance deficiencies,

which culminated in his ultimate discharge on November 9, 2005.

       On April 27, 2005, Lawson issued Evans a written warning for failure to meet a wheelchair

passenger at her gate. Because of Evans’ alleged belligerence and insubordination when Lawson

presented him with the disciplinary letter, Evans was suspended from work for the rest of that day

without pay. Due to Prospect’s further review of Evans’ actions, he was also released from work,

with pay, on April 28, 2005, but returned to work on May 2, 2005.

       On November 2, 2005, Prospect issued Evans his final disciplinary suspension. That

morning, Claypool and Strobel observed Evans pushing an elderly female passenger in an Southwest

Airlines wheelchair that did not contain a seatbelt, in violation of Prospect’s policies.1 As they

walked towards Evans to confront him about this violation, Evans allegedly approached them in an

aggressive manner complaining loudly about Strobel’s wheelchair assignments. In doing so, Evans

left the passenger unattended in the wheelchair without locking the wheels, again in violation of



       1
         In his brief on appeal, Evans disputes whether his use of a Southwest Airlines wheelchair
was in violation of Prospect’s policies. However, at his deposition, Evans admitted that he knew that
transporting a passenger in a Southwest wheelchair, which did not contain a seatbelt, was against
Prospect’s policies.

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                                             No. 07-5303

Prospect’s safety policies. When Claypool asked Evans about these observed violations, Evans

refused to talk and walked away. For Evans’ alleged insubordination during this incident, Claypool

suspended Evans.

        On November 9, 2005, Prospect terminated Evans’ employment for his repeated violations

of company safety policies and his insubordination. The termination letter sent to Evans provided

five specific incidents of unacceptable behavior as justification for the termination: (1) Evans’ failure

abide by the seatbelt policy on September 24, 2004; (2) Evans’ failure to cooperate with Claypool’s

investigation of the sexual harassment charge on October 25, 2004; (3) Evans’ use of a wheelchair

on a moving walkway on December 21, 2004; (4) Evans’ insubordination toward Lawson on May

2, 2005; and (5) Evans’ wheelchair safety violations on November 2, 2005.

B.      Procedural History

        On May 9, 2005, prior to his termination, Evans filed the instant suit against Prospect in the

United States District Court for the Middle District of Tennessee. In his amended complaint, filed

on December 1, 2005, Evans alleged that Prospect had violated his civil rights by: (1) unlawfully

discriminating against him on the basis of his race, in violation of both the anti-discrimination

provision of Title VII, 42 U.S.C. § 2000e-2, and Section 1981 of the Civil Rights Act of 1991, 42

U.S.C. § 1981; and (2) unlawfully retaliating against him for engaging in protected activity, in

violation of the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e-3.

        On August 21, 2006, Prospect filed a motion for summary judgment on all of Evans’ claims.

After receiving Evans’ response, the district court granted Prospect’s motion on February 13, 2007.

See Evans v. Prospect Airport Servs., Inc., No. 3:05-0368, 2007 WL 509078, at *1 (M.D. Tenn. Feb.


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                                             No. 07-5303

13, 2007). The district court found that Evans had produced insufficient evidence to persuade a

rational jury to find in his favor on either his race discrimination claim or his retaliation claim and

accordingly entered judgment in favor of Prospect. See id. at *10. With respect to the retaliation

claim, the district court found that Evans had produced insufficient evidence to demonstrate that a

causal connection existed between the filing of his EEOC complaints and Prospect’s termination of

his employment. See id. at *5-6.

        On March 13, 2007, Evans filed this timely appeal. On appeal, Evans has only challenged

the district court’s disposition of his Title VII retaliation claim, thereby waiving any objection to the

district court’s resolution of his race discrimination claim.

                                          II. DISCUSSION

A.      Standard of Review

        We review a district court’s grant of summary judgment de novo. Arendale v. City of

Memphis, 519 F.3d 587, 593 (6th Cir. 2008). Summary judgment is proper “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue of material fact exists when there are “disputes over facts that might affect

the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). However, “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Arizona v. Cities Servs.

Co., 391 U.S. 253, 289 (1968)).


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                                           No. 07-5303

       At the summary judgment stage, the moving party bears the initial burden of identifying those

parts of the record that demonstrate the absence of any genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). However, if the moving party seeks summary judgment on an

issue for which it does not bear the burden of proof at trial, the moving party may meet its initial

burden by showing “that there is an absence of evidence to support the nonmoving party’s case.”

Id. at 325. When the moving party has carried forward this burden, “its opponent must do more than

simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S.

at 586. The non-moving party may not rest upon its mere allegations or denials of the adverse

party’s pleadings, but rather must set forth specific facts showing that there is a genuine issue for

trial. Matsushita, 475 U.S. at 586; accord Fed. R. Civ. P. 56(e)(2).

       After the parties have presented the evidence, “the judge’s function is not himself to weigh

the evidence and determine the truth of the matter, but to determine whether there is a genuine issue

for trial.” Anderson, 477 U.S. at 249. In evaluating the evidence, the court must draw all inferences

in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587. However, “the

mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be

insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury

could reasonably find for the” non-moving party. Anderson, 477 U.S. at 252.

B.     Analysis

       Title VII makes it “an unlawful employment practice for an employer to discriminate against

any of his employees . . . because [the employee] has opposed any practice made an unlawful

employment practice by [Title VII] or because he has made a charge, testified, assisted, or


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                                            No. 07-5303

participated in any manner in an investigation, proceeding, or hearing” allowed for by Title VII. 42

U.S.C. § 2000e-3(a). Absent direct evidence of unlawful retaliation, claims brought pursuant to this

provision are subject to the tripartite burden-shifting framework first announced by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 523 (6th Cir. 2008). Under this framework, the plaintiff bears the initial

burden of establishing a prima facie case of retaliation by a preponderance of the evidence. See

Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411

U.S. at 802. If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to

offer evidence of a legitimate, non-discriminatory reason for the adverse employment action.

Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 802. Finally, if the defendant succeeds

in providing such a reason for the adverse employment action, the burden shifts back to the plaintiff

to show that the defendant’s proffered reason was not its true reason, but merely a pretext for

retaliation. See Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804. Although the

burdens of production shift, the ultimate burden of persuading the trier of fact that the defendant

intentionally retaliated against the plaintiff remains at all times with the plaintiff. See Burdine, 450

U.S. at 256.

        To establish a prima facie case of unlawful retaliation under Title VII, the plaintiff must

demonstrate that: (1) he engaged in activity protected by Title VII; (2) this exercise of protected

rights was known to the defendant; (3) the defendant thereafter took a materially adverse action

against the plaintiff or subjected the plaintiff to severe and pervasive retaliatory harassment; and (4)

there was a causal connection between the protected activity and the materially adverse action. See


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                                              No. 07-5303

Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000); Burlington Northern &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (modifying the third element of the prima facie

case to require a “materially adverse” action rather than an “adverse employment action”); see also

Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 736 (6th Cir. 2006). This “burden of

establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen

v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citing EEOC v. Avery Dennison Corp., 104

F.3d 858, 861 (6th Cir. 1997)).

         In the instant case, Evans has clearly established the first three elements of a prima facie case

for unlawful retaliation – i.e., Evans’ employment was terminated (a materially adverse action) at

some point in time after Prospect had become aware that he had filed EEOC complaints (activity

protected under Title VII). However, the parties disagree about whether Evans has presented

sufficient evidence for a rational jury to infer a causal connection between his filing of the EEOC

complaints and Prospect’s termination of his employment. On de novo review of the record, we

agree with the district court that Evans has failed to present sufficient evidence to demonstrate

causality, and according hold that Prospect is entitled to summary judgment on Evans’ retaliation

claim.

         To demonstrate a causal connection between a materially adverse action, such as termination,

and the exercise of protected rights, “a plaintiff must proffer evidence sufficient to raise the inference

that [the] protected activity was the likely reason for the adverse action.” Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th

Cir. 2007)). Generally, mere temporal proximity between an assertion of Title VII rights and a


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                                             No. 07-5303

materially adverse action without other indicia of retaliatory conduct is not sufficient to establish the

causal connection element of a retaliation claim. See Aerendale, 519 F.3d at 606; Michael, 496 F.3d

at 596; Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir. 2007); Randolph, 453 F.3d

at 737; Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir. 2001); Nguyen, 229 F.3d

at 566-67; Johnson v. University of Cincinnati, 215 F.3d 561, 582-83 (6th Cir. 2000). However, we

have recently clarified that, in a small subset of cases, temporal proximity alone may be sufficient

to establish causality:

        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 for the purposes of
        satisfying a prima facie case of retaliation. But where some time elapses between
        when the employer learns of a protected activity and the subsequent adverse
        employment action, the employee must couple temporal proximity with other
        evidence of retaliatory conduct to establish causality.

Mickey, 516 F.3d at 525 (finding temporal proximity alone to be sufficient when the defendant fired

the plaintiff on the same day in which it learned that the plaintiff had filed an EEOC complaint); see

also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that some cases have

“accept[ed] mere temporal proximity between an employer’s knowledge of protected activity and

an adverse employment action as sufficient evidence of causality” but that they have only done so

when the temporal proximity is “very close”); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555,

563 (6th Cir. 2004) (finding that temporal proximity of three months was “significant enough to

constitute sufficient evidence of a causal connection for the purpose of satisfying [the plaintiff’s]

burden of demonstrating a prima facie case”); DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004)

(“[T]his Circuit has embraced the premise that in certain distinct cases where temporal proximity


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                                            No. 07-5303

between the protected activity and the adverse employment action is acutely near in time, that close

proximity is deemed indirect evidence such as to permit an inference of retaliation to arise.”).

Beyond temporal proximity, other indicia of retaliatory conduct would include evidence that the

plaintiff was treated differently, either less positively or more negatively, than similarly situated

employees who had not exercised Title VII rights, see Moore v. KUKA Welding Systems & Robot

Corp., 171 F.3d 1073, 1080 (6th Cir. 1999), or evidence that the plaintiff was subjected to closer

disciplinary scrutiny after exercising Title VII rights. See Little, 265 F.3d at 364-65.

       In the instant case, we find that Evans has not produced sufficient evidence for a jury to

reasonably infer a causal connection between the filing of his EEOC complaints and his subsequent

termination. First, we are not convinced that the timing of Evans’ termination is sufficient to give

rise to an inference of causation. Prospect terminated Evans on November 9, 2005, almost a year

after he filed his third EEOC complaint and over seventeen months after the filing of his initial

EEOC complaint. As opposed to the immediate firing of the employee in Mickey, the more lengthy

gap in time between Evans’ filing of his EEOC complaints and Prospect’s eventual termination of

his employment does not, by itself, create a reasonable inference of retaliation.

       Moreover, other than Evans’ own conclusory allegations and the somewhat, but not very,

close temporal proximity of his termination to the dates of his three EEOC complaints, Evans has

offered no evidence to suggest that he was fired in retaliation for his filing of the EEOC complaints.

Evans claims that indicia of retaliatory conduct can be found in Prospect’s lack of justification for

the numerous disciplinary actions which led to his termination and the fact that they constitute unfair

increased disciplinary scrutiny. However, Evans fails to present evidence to support such arguments.


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                                            No. 07-5303

Indeed, as noted above, Evans has conceded the validity of most of Prospect’s charged disciplinary

violations. With respect to those disciplinary actions whose validity he contests, Evans has neglected

to identify any aspects of them, other than their timing, that would suggest that they were motivated

by a desire to retaliate against him. Likewise, Evans has failed to produce any evidence to suggest

that his workplace conduct was being more closely scrutinized than similarly situated employees

who had not filed EEOC complaints. Although Evans claims that the increased frequency of the

warnings and suspensions he received after filing his EEOC complaints demonstrates that he was

being disciplined more often than others, Evans has provided no evidence of Prospect’s disciplinary

actions against other employees to enable the jury to make such a comparison. In short, rather than

setting forth specific facts which would justify an inference of causation, Evans has only offered

unsupported allegations that he was retaliated against on account of his filing of EEOC complaints.

       Accordingly, we are compelled to conclude that Evans has failed to meet his burden of

producing at least some evidence to suggest that his termination on November 9, 2005 was causally

connected with the EEOC complaints which he filed on May 24, 2004, November 1, 2004, and

December 21, 2004. As Evans has not established this fourth element of a prima facie case of Title

VII retaliation, we hold that Prospect is entitled to summary judgment on Evans’ retaliation claim.



                                       III. CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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