                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0056p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                                Plaintiff-Appellant, -
 CHARLES D. MICKEY,
                                                       -
                                                       -
                                                       -
                                                           No. 06-1960
          v.
                                                       ,
                                                        >
 ZEIDLER TOOL AND DIE COMPANY; HAROLD                  -
                                                       -
                             Defendants-Appellees. -
 DEFORGE,

                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                   No. 05-70340—Nancy G. Edmunds, District Judge.
                                    Argued: October 30, 2007
                              Decided and Filed: January 31, 2008
                 Before: BATCHELDER, MOORE, and COLE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Teresa J. Gorman, TERESA J. GORMAN PLLC, Bingham Farms, Michigan, for
Appellant. Andrew T. Baran, COX, HODGMAN & GIARMARCO, Troy, Michigan, for Appellees.
ON BRIEF: Teresa J. Gorman, TERESA J. GORMAN PLLC, Bingham Farms, Michigan, for
Appellant. Andrew T. Baran, COX, HODGMAN & GIARMARCO, Troy, Michigan, for Appellees.
         COLE, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER,
J. (pp. 10-11), delivered a separate concurring opinion.
                                       _________________
                                           OPINION
                                       _________________
         R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Charles D. Mickey appeals the
district court’s grant of summary judgment on his claims brought under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Michigan’s Elliott-Larsen Civil Rights
Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Mickey’s lawsuit advances two claims:
(1) that Zeidler Tool & Die Company (“Zeidler”), his employer, and Harold DeForge, the sole
owner of Zeidler, discriminated against him on the basis of age in reducing his salary and benefits,
and in terminating him; and (2) that Zeidler terminated him in retaliation for filing a charge of age
discrimination with the Equal Employment Opportunity Commission (“EEOC”). The district court
held that Mickey failed to establish a prima facie case of age discrimination, finding that Mickey

                                                 1
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                                Page 2


had not shown that he was replaced by a significantly younger person. Although Zeidler terminated
Mickey immediately upon receiving notice of his EEOC complaint, the district court also concluded
that Mickey failed to establish a prima facie case of retaliation because he was unable to show a
causal connection between his protected activity and his termination. Finally, the district court
found that, even if Mickey had established a prima facie claim of retaliation, Zeidler offered
legitimate, non-discriminatory business reasons for terminating Mickey and that Mickey failed to
demonstrate that those reasons were a pretext for discrimination.
        For the reasons discussed below, we AFFIRM the district court’s grant of summary judgment
to Zeidler on Mickey’s age discrimination claims; REVERSE the district court’s grant of summary
judgment to Zeidler on Mickey’s retaliation claims; and REMAND the case for further proceedings
consistent with this opinion.
                                                 I.
        Mickey is a sixty-seven year old man, born November 28, 1940, who worked for Zeidler for
thirty-three years, from 1971 until his termination on October 19, 2004. Shortly after Mickey began
working as a die-maker at Zeidler, Harold DeForge purchased the company, and he remains its sole
owner. Around 1972, DeForge promoted Mickey to the position of die-leader, and in 1974
promoted him again to the position of shop supervisor. As a shop supervisor, Mickey supervised
some twenty to forty employees.
       In 1979, Mickey hired Patrick Rhein, a then-eighteen year old recent high school graduate,
born May 19, 1961, as an apprentice at the wage of $4.50 per hour. Mickey trained Rhein, who
completed his apprenticeship in 1983 and became a die maker. In the late 1980s, DeForge opened
Limberlost Farms, a bed-and-breakfast business in northern Michigan catering to deer hunters.
DeForge operated Limberlost during the months of September and October. DeForge began
spending four days per week at Limberlost Farms and the remaining three days, Tuesday through
Thursday, at Zeidler.
        Due to his decreased involvement with Zeidler, in 1992 DeForge created the position of
General Manager, moving Mickey to this position, and promoted Rhein to shop supervisor to replace
Mickey. By 1995, Mickey was earning a yearly salary of $90,000 and Rhein was earning $70,000.
In late 1997, DeForge lowered Mickey’s salary to $75,000 per year, explaining that Zeidler’s
financial condition required cost-cutting, but DeForge did not mention any dissatisfaction with
Mickey’s performance or reduction in his responsibilities. That same day, DeForge gave Rhein a
$20,000 raise, increasing his salary from $80,000 to $100,000. In January 2000, DeForge again
raised Rhein’s salary to $125,000; Mickey’s salary remained at $75,000.
         In early 2002, DeForge, citing Zeidler’s financial condition, reduced Mickey’s pay from
$75,000 to $70,000, and he reduced Rhein’s salary from $125,000 to $100,000. Mickey claims that
in 2002 and 2003, DeForge began inquiring into Mickey’s plans for retirement. After their
discussion in late 2003, Mickey presented a list of reasons to DeForge explaining his decision not
to retire. At that point, DeForge significantly altered Mickey’s terms of employment: effective
January 1, 2004, he reassigned Mickey from an exempt salary status (at $70,000 per year) to a non-
exempt $25.00 per hour status ($52,000 per year), rescinded all vacation and holiday pay benefits,
and limited Mickey to a forty-hour workweek. DeForge claims that he told Mickey he was “part
time,” but Mickey does not recall any such statements. DeForge stated that he changed Mickey’s
status because the company was not doing well; at this same time in January 2004, DeForge raised
Rhein’s salary to $110,000 from $100,000.
        Over the next several months in 2004, Mickey’s pay stubs document that he continued
regularly working a full forty-hour workweek. Mickey testified that his wife had a heart attack early
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                                Page 3


in 2004 and underwent emergency surgery. After she returned to health, he decided to file a charge
of discrimination with the EEOC. EEOC records show that Mickey filed his charge on October 7,
2004, and that the EEOC sent a notice of Mickey’s charge to Zeidler a week later on, October 14,
2004. DeForge spent the days of October 15 to 18, 2004, at Limberlost Farms.
         DeForge terminated Mickey’s employment on the morning of Tuesday, October 19, 2004.
Mickey testified that when he arrived for work at 7:30 a.m. that morning, DeForge followed him into
his office, told him that he was laid off, and that he should pack up his belongings. When asked at
his deposition whether he had seen Mickey’s EEOC charge at that time, DeForge first responded
that “I don’t remember” before admitting that “I did see it.” (Joint Appendix (“JA”) 259.) DeForge
claimed that the EEOC charge was not a factor in his decision to terminate Mickey, and that he “had
made the decision over that [prior] weekend” while in northern Michigan. (JA 254-55.) The very
day that he terminated Mickey, DeForge had his attorneys reply to Mickey’s charges in a letter to
the EEOC, which stated the company was not interested in mediating the case.
         DeForge offered several reasons for his decision to terminate Mickey. Specifically, he stated
that the condition of the business, Mickey’s performance, and the lack of available work for Mickey
motivated his decision. The financial documents DeForge claimed to have reviewed that weekend
showed that Zeidler made a profit of nearly $330,000 over the first nine months of 2004, compared
with a loss of approximately $410,000 in the same period of 2003. DeForge also admitted that
Zeidler was running help-wanted advertisements for various positions up to and after October 2004.
The advertised positions included jobs and duties that Mickey had performed earlier in his career,
such as die maker or die leader, but DeForge testified that during Mickey’s tenure as a supervisor
he at some point lost these various skills, although DeForge could not pinpoint when this occurred.
        On December 13, 2004, Mickey filed a charge of retaliation with the EEOC and filed his
complaint in the Eastern District of Michigan on January 31, 2005, within ninety days of receiving
a right-to-sue letter. On June 12, 2006, the district court entered an opinion and order granting
Zeidler’s motion for summary judgment, and on July 10, 2006, Mickey filed a notice of appeal.
                                                 II.
       This Court reviews a district court’s grant of summary judgment de novo. Spencer v.
Bouchard, 449 F.3d 721, 727 (6th Cir. 2006). Summary judgment is appropriate where the evidence
shows “that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). “In deciding an appeal of a grant of summary judgment, we view the evidence
and draw all reasonable inferences in favor of [Mickey], the non-moving party.” Singfield v. Akron
Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
                                                 A.
        The ADEA provides that it is unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to the
compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1). Absent direct evidence of discrimination, a plaintiff claiming that he was
unlawfully terminated in violation of the ADEA must establish a prima facie case of age
discrimination by showing: (1) he was at least 40 years old at the time of the alleged discrimination;
(2) he was subjected to an adverse employment action; (3) he was otherwise qualified for the
position; and (4) he was replaced by a younger worker. Tuttle v. Metro. Gov’t of Nashville, 474 F.3d
No. 06-1960             Mickey v. Zeidler Tool & Die Co., et al.                                        Page 4


307, 317 (6th Cir. 2007).1 If Mickey meets his prima facie burden, the burden then shifts to Zeidler
to articulate a legitimate, nondiscriminatory reason for the termination. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). If Zeidler articulates such a reason, the burden shifts back to
Mickey to show that this reason is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000).
        On appeal, the only contested issue regarding Mickey’s age discrimination claims is whether
he satisfied the fourth element of the prima facie case, and the district court concluded that he had
not. We agree. To establish the fourth element, Mickey needed to show either that Zeidler replaced
him with a younger worker or, alternatively, that Zeidler treated similarly situated, non-protected
employees more favorably. See Tuttle, 474 F.3d at 317 (“The fourth element may be satisfied ‘by
showing that similarly situated non-protected employees were treated more favorably.”) (internal
quotations and citation omitted).
         As to the claim that Mickey was replaced by a younger worker, Mickey argues that “Patrick
Rhein, 21 years younger than Mickey, assumed some of Mickey’s duties in early 2004 and took over
the remaining duties and General Manager position immediately upon Mickey’s termination ten (10)
months later.” (Appellant’s Br. 22); see also Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th
Cir. 2003) (“Age differences of ten or more years have generally been held to be sufficiently
substantial to meet the requirement of the fourth part of age discrimination prima facie case.”). In
his deposition, however, Mickey conceded that his primary duties in 2003 and 2004 consisted of
doing estimating work for projects, and the affidavit of Robert Beilat, another older worker whose
duties primarily involved estimating, noted that “[a]fter Mr. Mickey left Zeidler, I continued to do
the estimating work with Mr. DeForge.” (JA 178, 287.) Rather than assign Mickey’s duties to a
significantly younger worker, Zeidler dealt with his departure by having two older employees
assume his duties. As this Court stated in Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.
1990), “a person is not replaced when . . . the work is redistributed among other existing employees
already performing related work. A person is replaced only when another employee is hired or
reassigned to perform the plaintiff’s duties.” Further, even if Rhein assumed the title of General
Manager, Mickey’s former position, Mickey offered no evidence that Rhein assumed Mickey’s
estimating duties after his termination. Indeed, Mickey’s own testimony acknowledged that Rhein
long ago assumed the management duties that Mickey had once performed as shop supervisor prior
to 1992. See (JA 284-85) (“Mr. Rhein at that time [1992] then was made the supervisor on the floor
. . . generally controlling the whole operation.”).
        Mickey also argues that he established the fourth element of the prima facie case by showing
that Zeidler treated Rhein more favorably in regards to salary and benefits, but this argument fails
as well. This Court has explained that in analyzing the treatment of similarly situated employees,
the question is whether the plaintiff has “demonstrate[d] that he or she is similarly-situated to the
non-protected employee in all relevant respects.” Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 353 (6th Cir. 1998). We do not require “the non-protected employee . . . to be identically
situated to the plaintiff in every single aspect of their employment, [because] a plaintiff whose job
responsibilities are unique to his or her position will never successfully establish a prima facie case
(absent direct evidence of discrimination).” Id. For the purposes of resolving an age-based wage
discrimination claim under the ADEA, we find that the “the relevant factors include the skill, effort,
and responsibilities of each job and the working conditions under which each job is performed.”
Conti v. Universal Enter., Inc., 50 F. App’x 690, 699 (6th Cir. 2002).




        1
         “Michigan courts have considered federal law when reviewing claims of age discrimination based on state
law.” Featherly v. Teledyne Indus., Inc., 486 N.W.2d 361, 364 (Mich. Ct. App. 1992).
No. 06-1960               Mickey v. Zeidler Tool & Die Co., et al.                                             Page 5


         Although Zeidler offered a higher salary and more benefits to Rhein than it did to Mickey,
Mickey himself testified that Rhein was “generally controlling the whole operation” after 1992, and
that in the position of General Manager, Mickey “became less involved in running the shop.” (JA
284-85.) Between 1992 and 2004, the evidence shows that Mickey and Rhein performed different
roles in the company. As a shop supervisor, Rhein worked with customers, managed the supply
base, and controlled the day-to-day operations of the business, which included the responsibility for
hiring, firing, and disciplining other employees. (Id.) In contrast, as General Manager, Mickey
became more involved in estimating and quoting work, and less involved in running the shop on a
daily basis. (Id.) From this, we conclude that Mickey and Rhein were not similarly situated in all
relevant respects.
                                                          B.
         The McDonnell Douglas framework governs claims of retaliation based on circumstantial
evidence. To establish a prima facie case of retaliation, Mickey must show “(1) that [he] engaged
in a protected activity; (2) that the defendant had knowledge of [his] protected conduct; (3) that the
defendant took an adverse employment action towards [him]; and (4) that there was a causal
connection between the protected activity and the adverse employment action.” Weigel v. Baptist
Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th Cir. 2002) (citing Christopher v. Stouder Mem’l
Hosp., 936 F.2d 870, 877 (6th Cir. 1991)). “The burden of establishing a prima facie case in a
retaliation action2 is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563
(6th Cir. 2000).
        The parties dispute only whether Mickey established the fourth element of his retaliation
claim, a causal connection between his EEOC charge of discrimination filed on October 7, 2004,
and his termination on October 19, 2004, the day that DeForge and Zeidler learned of Mickey’s
charge. The district court, relying on the proposition “that temporal proximity, standing alone, is
not enough to allow a reasonable juror to conclude that [Zeidler] would not have laid off [Mickey]
‘but for’ his filing the EEOC charge,” concluded that Mickey had not met his burden. (JA 203.)
We disagree.
        Although recent case law presents as settled the proposition that temporal proximity alone
may not establish a causal connection, see, e.g., Tuttle, 474 F.3d at 321 (“The law is clear that
temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation
claim.”), this issue deserves greater attention. The Court in Tuttle cited Nguyen to support its
assertion that temporal proximity alone is not enough to establish causation, id., but Nguyen made
no such holding. See also Dixon v. Gonzales, 481 F.3d 324, 333-34 (6th Cir. 2007) (citing Nguyen
for the same holding); Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 737 (6th Cir. 2006)
(same); Little v. BP Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001) (same).
        Nguyen noted that “while there may be circumstances where evidence of temporal proximity
alone would be sufficient to support [the] inference [of retaliatory discrimination], we do not hesitate
to say that they have not been presented in this case.” 229 F.3d at 567 (emphasis added). Although
Nguyen did however note that other earlier cases could be read as having “rejected the proposition
that temporal proximity is enough,” id. at 566 (citing Cooper v. City of N. Olmsted, 795 F.2d 1265,
1272 (6th Cir. 1986), Nguyen reads these cases expansively, and none squarely stands for the


         2
           Although Michigan courts assess claims of retaliation under the ELCRA using the same general framework
as that used by federal courts, see West v. General Motors Corp., 665 N.W.2d 468, 471-73 (Mich. 2003) (citing federal
cases), the standard for causation is higher. The Michigan Court of Appeals has held that “[t]o establish causation, the
plaintiff must show that his participation in activity protected by the [EL]CRA was a ‘significant factor’ in the
employer’s adverse employment action, not just that there was a causal link between the two.” Barrett v. Kirtland Cmty.
Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001).
No. 06-1960               Mickey v. Zeidler Tool & Die Co., et al.                                             Page 6


proposition that temporal proximity alone may never show a causal connection. In Cooper, for
example, this court simply stated that “[t]he mere fact that Cooper was discharged four months after
filing a discrimination claim is insufficient to support an interference [sic] of retaliation.” 795 F.2d
at 1272. That language does not preclude plaintiffs from   ever using a temporal proximity closer than
four months to establish an inference of retaliation.3
         After Nguyen, other cases confronting this issue have often included statements similar to
Nguyen’s suggestion that in some circumstances “temporal proximity alone would be sufficient.”
229 F.3d at 567. For instance, in DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004), this Court
stated that “this Circuit has embraced the premise that in certain distinct cases where the temporal
proximity 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.” See also Asmo v. Keane, Inc., 471 F.3d 588, 593 (6th Cir. 2006) (“Temporal proximity can
establish a causal connection between the protected activity and the unlawful employment action
in the retaliation context.”); McNett v. Hardin Cmty. Fed. Credit Union, 118 F. App’x 960, 965 (6th
Cir. 2004) (finding causation when “only 13 days” separated protected activity from adverse action,
reasoning that an “employer’s knowledge of the protected activity coupled with an adverse action
occurring close in time can create an inference of causation where the particular circumstances
strengthen the inference of causation”); Shefferly v. Health Alliance Plan of Michigan, 94 F. App’x
275, 285 (6th Cir. 2004) (stating that “the passage of less than three weeks between [the employer’s]
receipt of the charges and the adverse actions gives rise to an inference of discrimination” and
“[t]herefore, in this case, [the plaintiff] has established a prima facie case of retaliation”); Mallory
v. Noble Corr. Inst., 45 F. App’x 463, 472-73 (6th Cir. 2002) (“[T]he fact that retaliation occurs
‘very close’ in time after a person engages in conduct protected by Title VII may suffice to satisfy
the causal connection requirement.”) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268
(2001)). Furthermore, one could read the Supreme Court as having accepted that temporal
proximity may be sufficient in a narrow set of cases. See Clark County, 532 U.S. at 273 (referencing
“cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a
prima facie case” and noting that those cases “uniformly hold that the temporal proximity must be
‘very close’”) (citations omitted).
        Although we acknowledge, as one district court recently noted, that some “confusion in the
case law [exists] on this issue,” Eppes v. Enter. Rent-A-Car Co., No. 3:05-CV-458, 2007 WL
1170741, at *7 (E.D. Tenn. April 18, 2007), the two lines of cases are fully reconcilable. 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. See Little, 265 F.3d at 365 (“[T]emporal proximity, when considered
with the other evidence of retaliatory conduct, is sufficient to create a genuine issue of material fact
as to” a causal connection.).



         3
            Likewise, Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999), cited in Nguyen, does not
preclude possibility that temporal proximity may suffice in some cases. The Moore Court simply stated that “[t]he causal
connection . . . may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the
complaint [with the EEOC] and by showing that he was treated differently from other employees.” 171 F.3d at 1080.
Although Parnell v. West, No. 95-2131, 1997 WL 271751, at *2 (6th Cir. May 21, 1997) (unpublished), the last case
cited in Nguyen, does contain language flatly stating that temporal proximity alone is insufficient to show a causal
connection, it noted that “previous cases that have permitted a prima facie case to be made based on the proximity of
time have all been short periods of time, usually less than six months.” Id. at *3. Thus, none expressly foreclose
plaintiffs from ever establishing a causal connection purely through temporal proximity.
No. 06-1960            Mickey v. Zeidler Tool & Die Co., et al.                                    Page 7


         The reason for this distinction is simple: if an employer immediately retaliates against an
employee upon learning of his protected activity, the employee would be unable to couple temporal
proximity with any such other evidence of retaliation because the two actions happened
consecutively, and little other than the protected activity could motivate the retaliation. Thus,
employers who retaliate swiftly and immediately upon learning of protected activity would
ironically have a stronger defense than those who delay in taking adverse retaliatory action.
Moreover, such a holding would accord with cases from other circuits, which recognize that, in rare
cases, temporal proximity alone may suffice to show a causal connection. See Stone v. City of
Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002) (“[M]ere temporal proximity
between the filing of the charge of discrimination and the action alleged to have been taken in
retaliation for that filing will rarely be sufficient in and of itself to create a triable issue.”); O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th Cir. 2001) (stating that “[u]nless there is very
close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff
must offer additional evidence to establish causation,” and noting that a prior case “‘held that a one
and one-half month period between protected activity and adverse action may, by itself, establish
causation’”) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999));
Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir. 2001) (“[T]emporal proximity alone will be
insufficient to establish the necessary causal connection when the temporal relationship is not
unusually suggestive.”) (internal quotations and citation omitted).
         With these principles in mind, and turning to the case at hand, we find that Mickey has met
his burden. When Mickey arrived for work on the morning of October 19, 2004, the very day that
DeForge learned of Mickey’s EEOC charge, DeForge followed him into his office, told him that he
was laid off, and that he should pack up his things. In those limited number of cases–like the one
at bar–where an employer fires an employee immediately after learning of a protected activity, we
can infer a causal connection between the two actions, even if Mickey had not presented other
evidence of retaliation. Cf. Nguyen, 229 F.3d at 563 (“The burden of establishing a prima facie case
in a retaliation action is not onerous, but one easily met.”). But even assuming that close temporal
proximity by itself is not enough to establish causation for the purposes of a retaliation claim, the
reduction in Mickey’s salary and benefits in 2004, along with DeForge’s occasional inquiries
regarding Mickey’s retirement plans, constitute sufficient additional circumstantial evidence.
Admittedly, such other evidence of retaliatory conduct has commonly included evidence of
additional discrimination occurring between the date at which the employer learned of the protected
activity and the date of termination or other adverse employment action. However, unlike most
plaintiffs, Mickey is unable to couple temporal proximity with any such other evidence of retaliation
because his employer immediately retaliated against him upon learning of his protected activity.
Thus, although these events occurred prior to his protected conduct, a reasonable juror could
conclude that Zeidler’s actions, coupled with exceptionally close temporal proximity, demonstrate
an underlying bias that tends to prove the later termination involved retaliatory discrimination.
        Because Mickey has established a prima facie case, under the McDonnell Douglas
framework “the burden shifts to the defendant to articulate a nondiscriminatory reason for its
actions. The defendant bears only the burden of production; the burden of persuasion remains with
the plaintiff at all times.” Weigel, 302 F.3d at 377-78 (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)). If the defendant articulates such a reason, the plaintiff may then
show that the defendant’s stated reason “is merely a pretext for discrimination.” Id. at 378. “A
plaintiff can demonstrate pretext by showing that the proffered reason (1) has no basis in fact, (2)
did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the
challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). The “plaintiff
must produce sufficient evidence from which the jury could reasonably reject [the defendants’]
explanation and infer that the defendants . . . did not honestly believe in the proffered non-
discriminatory reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488,
493-94 (6th Cir. 2001) (internal quotations and citations omitted). To show an honest belief, “the
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                                 Page 8


employer must be able to establish its reasonable reliance on the particularized facts that were before
it at the time the decision was made.” Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.
1998).
        Zeidler advances three non-discriminatory reasons for its decision to terminate Mickey, but
Mickey has succeeded in putting forth evidence from which a reasonable jury could conclude that
Zeidler did not act “in reasonable reliance” on the “particularized facts” relating to its asserted
reasons. Zeidler’s three asserted reasons were legitimate business reasons, including the condition
of the business, Mickey’s performance, and the lack of available work. DeForge also testified that
he had spent the weekend pondering the business and that “I had made the decision over that
weekend.” (JA 254-55.)
         Mickey presented ample evidence to permit a reasonable jury to conclude that Zeidler’s
reasons and DeForge’s claim to have made his decision over the weekend were merely a pretext for
retaliating against Mickey’s protected conduct. Zeidler’s first asserted reason is the condition of the
business, but Zeidler’s records show that 2004 marked a substantial upswing in Zeidler’s business
condition. According to records that DeForge claimed to have reviewed in October 2004, the first
nine months of 2004 saw Zeidler earn a profit of roughly $330,000, compared to a loss of
approximately $410,000 in the same period of 2003. Zeidler emphasizes that the company “had
endured three years of losses, and many painful steps had been taken in an effort to keep the
Company afloat.” (Appellant Br. 28.) But taking the drastic step of laying off a thirty-three year
employee just when the company begins to show a substantial profit has “little basis in fact” given
that business conditions had materially improved. Further, this Court has noted that “summary
judgment is not appropriate every time an employer offers this ‘business judgment’ rationale” and
that “facts may exist from which a reasonable jury could conclude that the employer’s ‘business
decision’ was so lacking in merit as to call into question its genuineness.” Hartsel v. Keys, 87 F.3d
795, 800 (6th Cir. 1996) (internal quotations and citation omitted).
        Zeidler’s second asserted reason, relating to alleged deficiencies in Mickey’s performance,
has no basis in the record. Because Zeidler did not keep detailed personnel records, Mickey’s
personnel file lacks any record of negative evaluations, and, to the contrary, the records show fairly
regular raises. Further, although DeForge testified that he felt that Mickey’s work ethic had declined
and that he spoke about his concerns with Mickey, Mickey testified that he did not recall any such
discussions. Given this conflicting evidence, Mickey presented sufficient rebuttal evidence to render
this issue a question for a jury.
      Zeidler’s final asserted non-discriminatory reason was the dwindling availability of work for
Mickey to perform, and again Mickey has presented sufficient evidence to render this reason
unworthy of credence. Zeidler admitted to running several advertisements seeking additional
employees to perform jobs that it conceded Mickey was once qualified to perform.
         Other evidence also supports viewing Zeidler’s asserted reasons as mere pretext. When
asked at his deposition whether any considerations beyond the three discussed above motivated his
decision to terminate Mickey, DeForge said “no.” (JA 259.) In response to the very next question
asked, “[i]sn’t it true, sir, that you had received [Mickey’s] EEOC charge at that time,” DeForge
initially responded “I don’t remember.” (Id.) When Mickey’s attorney asked a follow-up question,
“[i]s it your sworn testimony that you don’t recall seeing the EEOC charge before terminating Mr.
Mickey?” DeForge conceded that he had seen it, answering “No. I did see it.” (Id.) Thus, in the
context of questions probing his motives for terminating Mickey, DeForge initially sought to avoid
admitting that he knew about Mickey’s EEOC charge on the day he terminated him. DeForge
admitted the truth only when pressed whether his “sworn testimony” was that he had not seen the
EEOC charge letter. Furthermore, as to DeForge’s initial assertion that he did not remember
whether he had seen the charge that day, the record demonstrates that the very day that he terminated
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                                 Page 9


Mickey, October 19, 2004, DeForge had his attorneys reply to Mickey’s charges in a letter to the
EEOC. Such inconsistency and evasiveness seem to be the epitome of pretext meant to mask
retaliatory discrimination, at the very least raising a factual question for a jury to resolve.
        Finally, as to Mickey’s retaliation claim under the ELCRA, which requires showing that the
plaintiff’s protected activity was a “significant factor” in the employer’s adverse action, this Court
has held that “a plaintiff must present evidence sufficient to raise the inference that [his] protected
activity was the likely reason for the adverse action.” In re Rodriguez, 487 F.3d 1001, 1011 (6th Cir.
2007) (internal quotations and citation omitted). Given the temporal simultaneity in this case,
combined with Mickey’s evidence of pretext rebutting Zeidler’s asserted non-discriminatory
reasons for terminating him, Mickey has met this standard as well and that his claim raises questions
of fact for a jury to resolve. Accordingly, we conclude that Mickey has established a prima facie
case as to both his federal and state retaliation claims and has rebutted Zeidler’s asserted non-
discriminatory reasons for his termination with evidence of pretext.
                                                 III.
         For the reasons discussed above, we AFFIRM the district court’s grant of summary judgment
to Zeidler on Mickey’s age discrimination claims under the ADEA and ELCRA; REVERSE the
district court’s grant of summary judgment to Zeidler on Mickey’s retaliation claims; and REMAND
the case for further proceedings consistent with this opinion.
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                                  Page 10


                                    ________________________
                                        CONCURRENCE
                                    ________________________
        ALICE M. BATCHELDER, Circuit Judge, concurring. I join in all but section II(B) of the
lead opinion. While I join in the result the opinion reaches in section II(B) — namely, that an
employer’s firing an employee within minutes of learning of the employee’s protected activity is
enough to establish a prima facie case of retaliation — I write separately for two reasons. First, I
cannot agree with the lead opinion’s reading of this circuit’s precedents on the question of whether
“temporal proximity” alone can satisfy the causal connection prong of the McDonnell Douglas
framework. Second, I cannot agree that actions an employer took not only prior to learning of the
employee’s protected activity — but also prior to the protected activity itself — can possibly amount
to evidence of retaliation.
        The lead opinion takes an expansive view of the precedent in this circuit. In Nguyen v. City
of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000), a case in which we affirmed the district court’s
determination that the plaintiff had not established a prima facie case of retaliation, we stated in
dicta that “while there may be circumstances where evidence of temporal proximity alone would be
sufficient to support [an inference of a causal link], we do not hesitate to say that they have not been
presented in this case.” Then, the majority in DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004),
seized upon that dicta, along with several unreported cases — which have no precedential value —
to claim that we “have embraced the premise that in certain distinct cases” the time between the
protected activity and the adverse employment action is so brief that it “is deemed indirect evidence
such as to permit an inference of retaliation to arise,” 358 F.3d at 421, and to hold that “[i]n light
of our prior precedent the temporal proximity between the two events [2 weeks] is significant
enough to constitute indirect evidence of a causal connection so as to create an inference of
retaliatory motive.” Id. at 422. In fact, however, until DiCarlo we had never held that temporal
proximity, standing alone, satisfies the fourth prong of the McDonnell Douglas analysis. See Asmo,
471 F.3d at 598-601 (J. Griffin, dissenting) (explaining the development of the precedent in this
circuit).
         There is another line of cases in this circuit, indeed the great majority of cases, standing for
the proposition that temporal proximity alone is not sufficient to establish a causal connection for
a retaliation claim. See e.g. Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir. 2007);
Randolph v. Ohio Dept. of Youth Serv, 453 F.3d 724, 737 (6th Cir. 2006); Little v. BP Exploration
&Oil Co., 265 F.3d 357, 363-64 (6th Cir. 2001). Those cases required other evidence of retaliatory
conduct, in addition to temporal proximity, to demonstrate a causal connection. See Tuttle, 474 F.3d
at 321 (citing Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999)). But we have
never — at least in a published opinion — dealt with a case like the one before us here. Nguyen
should be read as leaving the door open very slightly for a finding that in a case in which the
employer’s learning of the protected activity is so closely followed by the employer’s taking of an
adverse action that the two are virtually contemporaneous — exactly the circumstances in this case
— the temporal proximity between the two is alone sufficient to establish the causal connection
necessary for the fourth prong of a prima facie case of retaliation.
        As the lead opinion points out, upon arriving at Zeidler Tool & Die on the morning of
October 19, 2004, DeForge learned of Mickey’s EEOC complaint. When Mickey arrived at 7:30
a.m., DeForge immediately fired him. There was virtually no time between these two events for
DeForge to engage in any other conduct that would demonstrate any retaliatory motive or intent.
Hence, Zeidler “ironically [has] a stronger defense than those who delay in taking adverse retaliatory
action.” Lead opinion at 7. In this factually unusual case, the extremely close temporal proximity
No. 06-1960           Mickey v. Zeidler Tool & Die Co., et al.                               Page 11


between these events does permit an inference that DeForge fired Mickey because of Mickey’s
protected activity.
       Realizing that our precedent suggests that temporal proximity is not enough to establish the
fourth prong of a prima facie case of retaliation, the lead opinion attempts to supply additional
evidence of retaliation in the form of actions taken by DeForge before Mickey filed his EEOC claim.
Specifically, the opinion states:
       [E]ven assuming that close temporal proximity by itself is not enough to establish
       causation for the purposes of a retaliation claim, the reduction in Mickey’s salary and
       benefits in 2004, along with DeForge’s occasional inquiries regarding Mickey’s
       retirement plans, constitute sufficient additional circumstantial evidence to establish
       a prima facie case.
Lead opinion at 7. Apparently recognizing the logical fallacy of using as evidence of retaliation
events that preceded the act allegedly prompting the retaliation, the opinion declares that “although
these events occurred prior to [Mickey’s] protected conduct, a reasonable juror could conclude that
Zeidler’s actions, coupled with exceptionally close temporal proximity, demonstrate an underlying
bias that tends to prove the later termination involved retaliatory discrimination.” The opinion cites
no authority in support of this proposition, and I must respectfully disagree with it.
         “Retaliate,” according to Merriam-Webster’s Online Dictionary, available at
http://www.merriam-webster.com/dictionary/retaliate (last visited January 24, 2008), is either a
transitive verb meaning “to repay (as an injury) in kind,” or an intransitive verb meaning “to return
like for like; especially: to get revenge.” One cannot repay or act in response to or get revenge for
something that has not yet happened. No reasonable juror could conclude that DeForge intended
to retaliate against Mickey for his filing the EEOC charge before he was aware that Mickey had
done so, let alone before Mickey had undertaken the protected activity in the first place, and
therefore, DeForge’s actions prior to Mickey’s filing of the EEOC charge cannot be evidence of
retaliation for that protected activity. This evidence is immaterial to Mickey’s retaliation claim and
cannot be used to support it.
         I concur in the lead opinion’s conclusion that Mickey has presented sufficient evidence of
retaliation to survive summary judgment, but I would simply hold that the unique circumstances of
this case — DeForge’s firing Mickey immediately after learning that Mickey had filed an EEOC
charge — suffice to establish the causal connection prong of Mickey’s prima facie case. I cannot
agree that the actions DeForge took before Mickey filed his EEOC charge, upon which the lead
opinion relies, are material or relevant to this claim.
