                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0670n.06

                                       Case No. 16-2748                                FILED
                                                                                 Dec 01, 2017
                            UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


CLAYTON PIERCE,                                    )
                                                   )
          Plaintiff-Appellant,                     )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
GENERAL MOTORS LLC, GENE LAUER,                    )       MICHIGAN
GREG PEPIN, DAVID NEIL, TODD                       )
AICHER, and TRENT MILLER,                          )
                                                   )
          Defendants-Appellees.                    )
                                                   )
                                                   )

          BEFORE: GILMAN, SUTTON, and STRANCH, Circuit Judges.

          SUTTON, Circuit Judge. Clayton Pierce claims that General Motors suspended him

because of his religion (Seventh-Day Adventist) and disability (degenerative joint disease) and in

retaliation for his assertion of rights (a race discrimination claim with the Equal Employment

Opportunity Commission). General Motors says that it suspended Pierce because he threatened

his supervisor. The district court granted summary judgment in favor of the defendants. We

affirm.

          Pierce worked as a “walk picker” for General Motors in its Willow Run warehouse in

Michigan. The warehouse stores parts for General Motors vehicles. Walk pickers fill orders

from dealers and other customers by walking through the warehouse to retrieve requested parts.

Eight-hour shifts are the norm.     But management sometimes requires overtime when the
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Pierce v. General Motors LLC
warehouse is busy. The collective bargaining agreement allows management, if need be, to

impose up to six mandatory Saturdays of work each year.

       In December 2013, the Willow Run facility announced its first mandatory Saturday of the

year. That posed a problem for Pierce because Seventh Day Adventists generally do not work on

Saturdays. Pierce told David Neil, a supervisor at Willow Run, about his beliefs. Company

policy, as Neil understood it, required employees to ask their direct supervisor for medical or

religious accommodations. He told Pierce to talk to his direct supervisor, Trent Miller, about

taking the day off. Pierce claims that, in the course of this conversation, Neil told him, “I don’t

care what day you go to church on.” R. 27-1 at 30. Neil was not Pierce’s supervisor and was not

in his chain of command.

       Pierce never spoke to Miller about missing the Saturday shift. He took the day off

anyway. This took Miller by surprise. Miller had supervised Pierce for just a few months and

did not know about his faith.         Miller started disciplinary proceedings against Pierce in

accordance with the collective bargaining agreement. Under that process, management places

employees who violate company rules “on notice” that they might be subject to discipline. But

before management can issue any discipline, it must provide its employees with a chance to

present their case in a “76A” meeting with management and the union.

       Consistent with this process, Miller put Pierce “on notice” that he might be subject to

discipline for missing his shift. Only then did Pierce tell Miller about his faith.

       Miller and Pierce dispute the rest of their conversation. According to Miller, he offered

to take Pierce off “notice” as soon as he provided proof of his religious belief, such as a letter

from a pastor. At least one other picker missed the mandatory Saturday for medical reasons, and

Miller took that employee off notice as soon as he provided support from his doctor. Miller says



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Pierce v. General Motors LLC
he offered Pierce the same opportunity. According to Pierce, Miller never made any such offer

to him.

          Two days later, Miller approached Pierce about the 76A meeting. According to Miller,

Pierce said that he “couldn’t believe” that management might potentially discipline him. R. 27-2

at 107. Pierce balled up his fists, “huff[ed] and puff[ed],” and said that he couldn’t promise

“who’s going to come out” of the room if they held the meeting. Id. at 107–09. According to

Pierce, he did become upset during the conversation. And he agrees that he balled up his fists

and experienced symptoms of a “rage attack[].” R. 27-1 at 35–36. But he denies actually

threatening Miller.

          Miller reported the incident to Greg Pepin (his supervisor) and Neil, who in turn reported

the exchange to Roger Pelton, the union representative. The three of them decided that there was

a potential for violence and the best way to avoid it was to suspend Pierce and postpone the 76A

meeting. Pelton walked Pierce out of the building after telling him about the suspension. Pierce

says that Pepin screamed “get out of my building” and “I’m sick of you” as he left. Id. at 38.

          A few weeks later, General Motors sent a letter to Pierce asking him to return to work for

a 76A meeting. Pierce did not respond and has been out on medical leave ever since.

          Pierce complained to the Equal Employment Opportunity Commission.              Before the

Commission, Pierce claimed that the company failed to accommodate his religious needs when it

tried to discipline him for failing to work on Saturday. He also claimed that he was suspended

because of his race and religion and in retaliation for a previous race discrimination complaint

that he had filed with the Commission in October of that year. He made no mention of disability

discrimination in his initial complaint and raised it only in his request for reconsideration. The

Commission declined to act on Pierce’s complaint and issued him a right to sue letter.



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Pierce v. General Motors LLC
       Pierce sued General Motors and several of its supervisors, raising several discrimination

claims under federal and state law. The district court granted summary judgment to the company

and the supervisors on all of them. Pierce does not challenge most of those rulings. He appeals

only the district court’s resolution of these claims: (1) religious discrimination under Title VII

and Michigan’s Elliot-Larsen Civil Rights Act; (2) retaliation under Title VII and Michigan’s

Elliot-Larsen Civil Rights Act; and (3) disability discrimination under the Americans with

Disabilities Act.

       We give fresh review to the district court’s summary judgment ruling in favor of General

Motors, and read all reasonable inferences in the record in favor of Pierce. Cline v. BWXT Y-12,

LLC, 521 F.3d 507, 509 (6th Cir. 2008). The familiar McDonnell Douglas burden-shifting

framework guides our resolution of each claim. Tepper v. Potter, 505 F.3d 508, 515–17 (6th Cir.

2007) (Title VII religious discrimination); Hussain v. Highgate Hotels, Inc., 126 F. App’x 256,

263–64 (6th Cir. 2005) (Elliot-Larsen Civil Rights Act religious discrimination); Laster v. City of

Kalamazoo, 746 F.3d 714, 730–32 (6th Cir. 2014) (Title VII retaliation); Booker v. Brown &

Williamson Tobacco Co., 879 F.2d 1304, 1311 (6th Cir. 1989) (Elliot-Larsen Civil Rights Act

retaliation); Talley v. Family Dollar Stores of Ohio, 542 F.3d 1099, 1105 (6th Cir. 2008)

(Americans with Disabilities Act discrimination).

       Under this framework, Pierce bears the burden of establishing a threshold case of

discrimination or retaliation. If successful, the burden shifts to the company to articulate a

legitimate explanation for its decision. If the company meets this requirement, Pierce must show

that the stated ground is a pretextual cover for discrimination or retaliation. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–05 (1973).




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        There is no need to determine whether Pierce established presumptive cases of

discrimination or retaliation because he cannot discredit the company’s reason for suspending

him. See Cline, 521 F.3d at 509. General Motors says that it suspended Pierce because he

threatened his supervisor.      Pierce has not shown that this explanation was a pretext for

discrimination or retaliation, whether because it (1) lacked a basis in fact, (2) did not actually

motivate the company’s decision, or (3) did not suffice to motivate that decision. Id. at 509. His

employment record counters the first two possibilities, as it records the threat and shows that he

was suspended for that reason: “[m]aking a threat to a member of management.” R. 27-1 at 39.

Company rules counter the third possibility, as they confirm that threatening a supervisor

provides grounds for a suspension.

        Pierce offers a rejoinder to one of these conclusions. He denies that the company’s

explanation has any basis in fact. As proof, he points out that the parties dispute whether Pierce

threatened Miller at all, and this factual dispute, he insists, requires a trial.

        The problem is, Pepin and Neil, not Miller, made the suspension decision. They chose to

suspend Pierce after listening to Miller’s version of the events and after believing him. Under

the “honest belief” rule, an explanation honestly believed by a supervisor counts as a factual

basis for a decision, not as a pretext for that decision. Ferrari v. Ford Motor Co., 826 F.3d 885,

895–96 (6th Cir. 2016). Allegations that Miller lied about the threats do not show that Pepin and

Neil’s explanation was false or pretextual. The allegations merely show that the beliefs of

Miller’s supervisors could have been mistaken.            Id.   But to prove that Pepin and Neil’s

explanation was false or pretextual, Pierce must show that they did not honestly believe Miller’s

version of the events. Id.




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Pierce v. General Motors LLC
       The uncontroverted evidence shows that Miller reported the threat to Pepin and Neil and

that they believed him. Neil answered “Yes” when asked in his deposition whether he accepted

Miller’s version of the events. R. 27-4 at 54. So did Pepin. R. 27-3 at 76. And Miller’s reaction

gave them good reason to believe his story. Both Pepin and Neil testified in their depositions

that Miller looked “shook up.” R. 27-3 at 76; R. 27-4 at 51. Neil added that he was “almost in

tears.” R. 27-4 at 51. Pierce was “a pretty big guy,” they noted, and had “made intimidating

body motions toward other employees and management” in the past. Id. at 52–53. Neil, Pepin,

and union representative Pelton thus “believed that there was the potential for violence.” Id. at

52.

       Pierce offers no reason to think otherwise. He alleges that Pepin and Todd Aicher

(another supervisor at the warehouse) “pad[ded]” his personnel file to make it easier to discipline

him. Appellant’s Br. 26. But Pierce admits that everything Pepin and Aicher put in his file was

true: He did arrive late to two meetings in October, and he did receive a written reprimand as a

consequence. The company at any rate did not rely on his personnel file to discipline him.

Pierce also points to Neil’s comment: “I don’t care what day you go to church on.” But that

does not suggest that Neil disbelieved Miller’s contention that Pierce threatened him. Pierce

adds that a jury could find that Pepin and Neil acted with discriminatory or retaliatory intent

under the “totality of the circumstances.” Id. at 26. But we fail to see which “circumstance”

would permit this inference, making even a “totality” of such circumstances unhelpful.

       The “honest-belief rule,” it is true, sometimes gives way to the “cat’s paw” theory of

liability, the idea that a plaintiff may show pretext when a biased lower-level supervisor without

decision-making power manipulates a neutral decision maker to make an employment decision.

Marshall v. The Rawlings Co., 854 F.3d 368, 377 (6th Cir. 2017). But Pierce does not allege that



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Pepin and Neil acted as Miller’s dupes. He does not even suggest that Miller harbored any

discriminatory or retaliatory intent. To the contrary, he acknowledges that he and Miller got

along well.

       Pierce’s claims, for what it is worth, face other challenges. Pepin and Neil testified that

they never knew that Pierce had filed a complaint with the Equal Employment Opportunity

Commission and thus could not have retaliated against him for filing it. And the record indicates

that Pierce failed to exhaust his disability discrimination claim with the Commission. But we

need not resolve these other grounds for rejecting his claims. For present purposes, it suffices to

say that General Motors had a legitimate nondiscriminatory explanation for suspending him, and

Pierce has not shown that this explanation was a smokescreen for a discriminatory or retaliatory

motive.

       For these reasons, we affirm.




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