                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0919n.06
                                                                                            FILED
                                            No. 11-1148
                                                                                      Aug 20, 2012
                              UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT


SCOTT TRUJILLO,                                            )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellant,                                )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE EASTERN
v.                                                         )        DISTRICT OF MICHIGAN
                                                           )
HENNIGES AUTOMOTIVE SEALING SYSTEMS                        )                            OPINION
NORTH AMERICA, INC., a foreign corporation                 )
sometimes doing business as GDX Automotive and             )
formerly known as GDX North America Inc.,                  )
                                                           )
       Defendant-Appellee.                                 )
                                                           )




BEFORE:        BOGGS and COLE, Circuit Judges; and OLIVER, Chief District Judge.*

       COLE, Circuit Judge. Scott Trujillo, the former director of global finance for Defendant

Henniges Automotive Sealing Systems North America, Inc. (“Henniges”), was terminated on

September 15, 2008. Trujillo alleges that he was terminated in retaliation for complaints he made

at the time regarding racist statements uttered by Henniges management, as well as for a complaint

to Henniges’s Vice President for Human Resources regarding those comments. The district court

found that Trujillo did not make out a prima facie case of retaliation under Title VII, as his informal

complaints did not constitute protected activity under the statute. For the reasons set out below, we



       *
       The Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the
Northern District of Ohio, sitting by designation.
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

AFFIRM the grant of summary judgment on Trujillo’s retaliation claim with regard to the statements

themselves, but REVERSE the district court’s grant of summary judgment on Trujillo’s retaliation

claim with regard to his complaint to Henniges human resources personnel, and REMAND the case

for further proceedings consistent with this opinion.

                                        I. BACKGROUND

       Scott Trujillo was hired by Henniges in early 2008 as a corporate controller. (Trujillo Dep.,

R.23-17, PageID# 183, at 41:9-24.) Henniges was formed in late 2007 from the merger of two

former competitors, GDX and Metzeler. (Id., PageID# 182, at 38:8:17.) Henniges manufactured

sealing and anti-vibration components for the automotive industry. (Id. at 38:18-21.) Henniges

operated a number of plants around the world, including two in Mexico. (Id. at 38:22 - 39:5.)

       In mid-July 2008, Trujillo participated in a conference call with Henniges’s senior

management and the management of the Henniges plant in Guadalajara, Mexico. (Id., PageID# 198-

99, at 224:14 - 225:11.) After the conference call ended, Larry Rollins, Henniges’s Vice President

of Operations, referred to the Mexican plant employees as “those f***ing wetbacks.”1 (Id., Page ID#

199, at 226:10-12.) After the meeting ended, Trujillo confronted Rollins regarding the comment,

though in a “lighthearted way,” and Rollins was “very embarrassed and . . . very apologetic. . . .”

(Id., PageID# 200, at 230:3-9.)




       1
        Henniges does not dispute that these incidents occurred. We view all facts on summary
judgment in the light most favorable to the non-moving party, Bryson v. Middlefield Fire Dept., Inc.,
656 F.3d 348, 351 (6th Cir. 2011).

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No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

       In early September 2008, Trujillo traveled with a group of Henniges’s management to review

the European operations of the company. During a dinner with other Henniges executives, Trujillo

discussed with Rollins the relationship between Juan Perez, an employee at one of Henniges’s

Mexican plants, and Wayne Campbell, the Henniges finance manager for both Mexican plants.

Perez and Campbell had a poor working relationship, which Trujillo attributed to the harsh

management style of Campbell. Trujillo asked if Rollins would suggest to Campbell that he “soften

his style with Juan,” and suggested that Campbell’s style was “very intimidating and very unnerving”

to Latin American employees. (Id., PageID# 201, at 235:2-11.) Rollins cut Trujillo off and said,

“F*** that cultural bulls**t, Scott, and tell Juan to grow up.” (Id. at 235:18-19.) Later, Rollins

publicly characterized Perez as “f***in’ worthless” as an employee. (Rollings Dep., R. 25-52,

PageID# 562, at 89:11-12.) At the same dinner, Rollins referred to African-Americans as “brothers”

repeatedly, even after being corrected by Trujillo. (Trujillo Dep., R.23-17, PageID# 202, at 237:8-

19.)

       In light of the comments by Rollins, Trujillo spoked to Geri Gasperut, Henniges’s Vice

President of Human Relations, who was also present on the European trip. (Id. at 238:21-23.)

Trujillo could not identify specifically which comments of Rollins he related to Gasperut, but he did

testify that he “sa[id] something to her about Rollins’ continued—I say continued because it

happened more than once—choice to say inappropriate or derogatory things about other races.” (Id

at 240:6-9.)




                                                -3-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

       A week after returning from the European trip, Trujillo was fired. (Trujillo Dep., R. 31-2,

Page ID# 762, at 194:2-11.) Gasperut was present at the meeting in which Trujillo was fired, and

stated that the firing was done because Trujillo was not “a good fit.” (Id. at 195:18-19.)

       Trujillo filed suit in the Eastern District of Michigan, alleging that he was terminated in

retaliation for lodging complaints regarding Rollins’s racially-oriented comments.2 (Complaint, R.

1, PageID# 6, at ¶ 26.) Henniges filed a motion for summary judgment, arguing, inter alia, that

Trujillo did not engage in protected activity, and thus could not demonstrate an element of the prima

face case for discrimination. The district court granted summary judgment to Henniges, holding that

“Plaintiff did not oppose any Title 7 violations,” instead making only “a vague charge of

discrimination.” (Hearing Tr. on Mot. for Summ. J., R. 36, PageID# 850, at 38:7-10.) This appeal

followed.

                                           II. ANALYSIS

       A grant of summary judgment by the district court is reviewed de novo. Bryson, 656 F.3d

at 351. “Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). All

facts, and all inferences drawn from those facts, must be taken in the light most favorable to the non-

moving party, in this case Trujillo. See Id.




       2
        Trujillo also alleged that his termination was itself a product of race and/or national origin
discrimination. Trujillo voluntarily withdrew this claim at the hearing on the motion for summary
judgment. (Hearing Tr. on Mot. for Summ. J., R. 36, PageID# 817, at 5:11-15.)

                                                 -4-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

        To establish a prima face case of retaliation under Title VII, the terminated employee must

show “(1) he . . . engaged in protected activity, (2) the employer knew of the exercise of the protected

right, (3) an adverse employment action was subsequently taken against the employee, and (4) there

was a causal connection between the protected activity and the adverse employment action.”

Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009) (quoting Niswander v. Cincinnati Ins.

Co., 529 F.3d 714, 720 (6th Cir. 2008)). The relevant “protected activity” in this case is defined in

42 U.S.C. § 2000e-3(a) as “oppos[ing] any practice made an unlawful employment practice by this

subchapter. . . .” The term “oppose” in the statute should be understood according to its ordinary

meaning, which is “to resist or antagonize . . . ; to contend against; to confront; resist; withstand.”

Crawford v. Metro. Gov’t. of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (quoting

Webster's New International Dictionary 1710 (2d ed.1958)).

        The district court concluded that Trujillo did not “oppose” the allegedly discriminatory

comments made by Henniges’s employees, and as such did not engage in protected activity. In doing

so, it relied on our formulation that “a plaintiff must engage in a discrete, identifiable, and purposive

act of opposition to discrimination.” (Hearing Tr. on Mot. for Summ. J., R. 36, PageID# 850, at

38:2-5 (citing Thompson v. North Am. Stainless, LP, 567 F.3d 804, 816 (6th Cir. 2009) (en banc),

rev’d on other grounds 131 S.Ct. 863 (2011)). Trujillo argues that this formulation is an incorrect

statement of the Supreme Court’s holding in Crawford, and in any event, is no longer good law in

light of the Supreme Court’s subsequent reversal of Thompson. We need not reach this issue,

because we find that the result is the same under either the Thompson formulation or Trujillo’s

formulation.

                                                  -5-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

        With regard to Trujillo’s response to the comments made by Rollins, we agree with the

district court that they do not constitute acts of “opposition” to discrimination, even under Trujillo’s

articulation of the Crawford standard. We have previously held that advocating for members of a

protected class is protected activity for purposes of Title VII retaliation. Barrett v. Whirlpool Corp.,

556 F.3d 502, 513 (6th Cir. 2009). Thus, contrary to the district court’s conclusion, Trujillo could

have engaged in protected activity if he had complained about Rollins’s comment at the time, even

though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony

makes clear that he did not complain to Rollins about the comments at the time they were made.

With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s

comment offended him, let alone that he was complaining about the racial or ethnic character of the

conduct. (Trujillo Dep., R. 23-17, PageID# 200, at 229:19-20.) Similarly, Trujillo testified that after

the“cultural bulls**t” statement by Rollins, “I said, I’ll talk to [Perez] about acclimating to Wayne’s

style and I’ll try to keep the peace. And I exited the conversation as quickly as I could.” (Id.,

PageID# 201, at 236:15-18.) Finally, Trujillo’s only response to the “brothers” comment was to

clarify whether Rollins was referring to African-Americans. (Id., at 237:15-19.) Nothing in

Trujillo’s responses can reasonably be construed as “opposition” to the alleged racial character of

the statements.

        In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not

in “opposition” to the alleged racial character of Rollins’s comments. Trujillo stated in his

deposition that he spoke to Gasperut and “sa[id] something to her about Rollins’ continued—I say

continued because it happened more than once—choice to say inappropriate or derogatory things

                                                 -6-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

about other races.” (Trujillo Dep., R.23-17, PageID# 202, at 240:6-9.) Taking the facts in the light

most favorable to Trujillo, this statement can be construed as a complaint about a hostile work

environment caused by racial and national origin discrimination.           When assessing hostile

environment claims, we have emphasized that “the issue is not whether each incident of harassment

standing alone is sufficient to sustain the cause of action in a hostile environment case, but

whether—taken together—the reported incidents make out such a case.” Betts v. Costco Wholesale

Corp., 558 F.3d 461, 468-69 (6th Cir. 2009) (quoting Williams v. Gen. Motors Corp., 187 F.3d 553,

562 (6th Cir. 1999)) (internal quotation marks omitted). Moreover, “[t]his court’s caselaw therefore

makes clear that the factfinder may consider similar acts of harassment of which a plaintiff becomes

aware during the course of his or her employment, even if the harassing acts were directed at others

or occurred outside of the plaintiff’s presence.” Id. at 469 (quoting Hawkins v. Anheuser-Busch,

Inc., 517 F.3d 321, 336 (6th Cir. 2008)) (alteration in original) (internal quotation marks omitted).

       We have repeatedly held that complaints to human resources personnel regarding potential

violations of Title VII constitute protected activity for purposes of establishing a prima facie case

of retaliation. See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007); see

also Hill v. Air Tran Airways, 416 F.App’x 494, 498 (6th Cir. 2011); Shepard v. Uniboring, 72

F.App’x 333, 336 (6th Cir. 2003). The fact that it was, as the district court characterized it, an

“informal conversation” (Hearing Tr. on Mot. for Summ. J., R. 36, PageID# 851, at 39:19-20), does

not change the nature and purpose of the conversation, which was a “discrete, identifiable, and

purposive” opposition to racially-oriented language. Thompson, 567 F.3d at 816.



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No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

       It is true that we have found that some complaints to human resources personnel are not

sufficiently specific to constitute opposition to employment discrimination. Booker v. Brown &

Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313-14 (6th Cir. 1989). Booker, however, is

distinguishable. In Booker, the employer had already begun proceedings to demote the employee

when the employee sent a letter to human resources raising a number of objections to the process,

including racial discrimination. Id. at 1309. We found that the gravamen of the letter to human

resources was a complaint about management practices, rather than one of racial discrimination. See

id. at 1313 (“An examination of the letter indicates that it is not in opposition to a violation of the

Act. Booker was not contesting any unlawful employment practice; he was contesting the

correctness of a decision made by his employer.”) Here, Trujillo specifically states that the only

issue he raised with Gasperut was the racially-oriented nature of Rollins’s comment, not any

complaints over management style. Moreover, while we found in Booker that an accusation of a

racially-oriented comment by an employee does not implicate direct racial discrimination in

demotion decisions, id., here the comments themselves are the unlawful employment practice to the

extent that they create a hostile work environment. Thus, Trujillo’s claim regarding Rollins’s alleged

statements is relevant to the underlying alleged Title VII violation in a way that is not the case in

Booker. Finally, we did note that “a vague charge of discrimination in an internal letter or

memorandum is insufficient to constitute opposition to an unlawful employment practice.” Id. But

that statement was made in the context of a charge of “ethnocism,” a claim that we were unable to

define. See id., n.4. Trujillo’s complaint to Gasperut, while perhaps not a model of clarity or

specificity, is far more concrete than a charge of “ethnocism.”

                                                 -8-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

       Henniges also argues that Trujillo could not reasonably have believed that the conduct of

Rollins constituted a violation of Title VII. A plaintiff “opposing an apparently discriminatory

practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith

belief that the practice is unlawful.” Booker, 879 F.2d at 1312-13. Henniges argues that Trujillo

could not have had that good faith belief, and analogizes this case to Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268 (2001). There, the Supreme Court found the comments alleged in the

complaint to have occurred were so de minimis that no reasonable person would believe they would

constitute sexual harassment, particularly in light of the fact that the complainant’s job required her

to review sexually-oriented materials, and the complainant conceded that reviewing those materials

“did not bother or upset her.” Id. at 271. In contrast, Trujillo alleges that a senior Henniges’s

manager made multiple racially-oriented comments over the course of a relatively short period of

time, some of them rather severe. This conduct is far more serious than the singular allegation in

Breeden. Moreover, there is no dispute that the comments did upset Trujillo, insofar as he sought

out Gasperut to voice his concerns. A reasonable person in Trujillo’s position, particularly one

without legal training, could conclude that Rollins’s comments constituted hostile environment

discrimination in violation of Title VII.1



       1
         In reaching this conclusion, we do not mean to suggest that Henniges engaged in conduct
that was in violation of Title VII, or even that Trujillo could make out a prima facie case of
discrimination under Title VII. Indeed, the fact that Trujillo voluntarily dismissed his direct
discrimination claim under Title VII suggests that he could not make out such a claim. (Hearing Tr.
on Mot. for Summ. J., R. 36, PageID# 817, at 5:7-16.) The relevant test here is whether Trujillo had
a good faith belief at the time he spoke to Gasperut that Rollins’s comment were creating a hostile
work environment, not whether he was correct.

                                                 -9-
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

        Finally, Henniges also argues, and the district court held, that the conversation with Gasperut

was not opposition because Gasperut did not understand Trujillo to be complaining of racial or other

inappropriate bias. But this conclusion conflates the elements of the prima facie case. The

possibility that Gasperut may have misinterpreted Trujillo’s intentions does not diminish the fact that

it constitutes protected activity. If it is the case that Gasperut did not properly interpret Trujillo’s

comments, that could go to whether Henniges and its executives were aware of Trujillo’s protected

activity, or whether the protected activity is causally connected to Trujillo’s termination. These

questions are unresolved, as the district court rested summary judgment exclusively on the protected-

activity prong of the prima facie case. We take no position on whether Trujillo can meet his burden

on these, or any other, elements of the prima facie case beyond the protected-activity prong, and

remand to the district court for consideration of these questions in the first instance.

                                         III. CONCLUSION

        For the reasons stated above, we AFFIRM the grant of summary judgment on Trujillo’s

retaliation claim with regard to the statements made by Rollins, REVERSE the district court’s grant

of summary judgment on Trujillo’s retaliation claim with regard to his complaint to Henniges’s

human resources personnel, and REMAND the case for further proceedings consistent with this

opinion.




                                                 - 10 -
No. 11-1148
Trujillo v. Henniges Automotive Sealing Systems NA, Inc.

        DANNY J. BOGGS, Circuit Judge, concurring in part and dissenting in part. I agree with

the majority opinion that the plaintiff’s hearing “racially-oriented comments” by a fellow worker did

not constitute protected activity, even if they made the plaintiff uncomfortable. However, with

respect to the portion of the opinion reversing as to the second grounds for plaintiff’s allegation of

retaliation for protected activity, I do not agree. As the majority correctly notes, “Trujillo could not

identify specifically which comments of Rollins he related to” the vice-president of human relations,

but only that he “sai[d] something to her about Rollins’s continued – I say continued because it

happened more than once – choice to say inappropriate or derogatory things about other races.”

(Maj.Op. at 3)

        If the plaintiff had complained that such comments constituted discrimination against him,

I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such

remarks could constitute discrimination against other people in the company, I would concur.

However, plaintiff himself said: “I kind of was just venting. I was not intending for her to take

action.” Plaintiff’s brief says that this conversation was opposition to hostile work-environment

discrimination, but plaintiff’s complaint and deposition make no such connection. Not every casual

remonstrance against bad language equates to complaining of illegal discrimination.

        On balance, then, I think Judge Battani did not err in holding that this single, off-hand remark

was an “act of opposition to discrimination” rather than a casual “heads-up” to higher management

that Rollins was being a jerk and potentially a problem.

        Therefore, I respectfully dissent from the portion of the majority opinion reversing that aspect

of the district court’s decision.

                                                 - 11 -
