                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0778n.06
                          Filed: December 22, 2008

                                            07-6134

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


KENNETH CLACK,                                  )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
ROCK-TENN COMPANY and ROCK-                     )   EASTERN DISTRICT OF TENNESSEE
TENN COMPANY, MILL DIVISION,                    )
                                                )
       Respondents-Appellees.                   )




       Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN,* District Judge.


       PER CURIAM.        The plaintiff, Kenneth Clack, appeals from the order granting

summary judgment to the defendants, Rock-Tenn Company and Rock-Tenn’s Mill Division,

that was entered on Clack’s claims that his termination constituted racial discrimination and

retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

The magistrate judge, sitting as the district court by consent, held that Clack had

established a prima facie case of race discrimination but had failed to show that the

defendants’ purported reason for the termination, Clack’s insubordination, was a pretext for




       *
       The Hon. Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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Clack v. Rock-Tenn Company

either racial or retaliatory animus. W e find no basis on which to overturn the summary

judgment order and affirm.




                     FACTUAL AND PROCEDURAL BACKGROUND


       In February 2005, at the time of the events giving rise to this litigation, Kenneth

Clack, an African-American male, had been employed at Rock-Tenn’s Chattanooga facility

as a line worker in the company’s recycled paperboard plant since 1986. During the early

years of his employment, Clack apparently had little difficulty with the company’s

management but beginning in 1995, his relationship with his supervisors grew increasingly

contentious. According to the record, over the next decade Clack filed some 15 or more

grievances with his union steward. One or two of those complaints alleged non-specific

“harassment.” In two others, Clack made reference to a supervisor who “ha[d] a skin

problem” and complained about a racial slur, although the record does not reflect its source.

The other grievances concerned disagreements about work assignments, use of safety

equipment, scheduling difficulties, and the like. As summarized by the defendants, they do

not explicitly reflect racial hostility or animus as a basis for Clack’s complaint.


       In 1998, Clack filed an EEOC complaint, and later a lawsuit, against the defendants

contending that he had been subject to racial harassment for a number of years, and in

2000, Clack and Rock-Tenn entered into a confidential agreement settling the case. In


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2003, Clack filed both a grievance with his union accusing Rock-Tenn’s general manager,

W alter Lancaster, of harassment and retaliation relating to his 1998 lawsuit and a second

EEOC complaint based on Lancaster’s alleged harassment and retaliation. There is no

indication in the record that this complaint became the subject of a lawsuit.


       In November 2004, Clack filed a union grievance against his immediate supervisor,

foreman Bill Murphy, accusing him of “telling lies against [him] and mak[ing] threatening

statements to [him].” At an internal meeting in December 2004 to discuss this grievance,

Clack indicated that he believed that Murphy was retaliating against him because of his

previous EEOC complaints. In response, Lancaster told Clack that if he felt that Murphy

was harassing him, he should report it to Mike McDougal, the plant superintendent. Clack

later maintained that he was instructed to contact Mike McDougal “immediately” rather than

“wait until a break.” By contrast, Lancaster insisted that he did not state or even imply that

Clack could stop work or refuse work in order to contact McDougal.


       The specific event that led to this litigation occurred on February 1, 2005. Murphy,

who was the foreman on duty, instructed Clack to clean up some debris that had fallen near

the machine Clack was working on. Clack testified that as the “filler-man” on the machine,

it was his job to feed material into the machine and keep his immediate area clean and that

the “utility man” assigned to the machine was responsible for general clean-up around the

machine. Clack also claims that the “utility man” on duty that day, Denny W ooten, was

standing nearby watching Murphy and Clack’s interaction. Clack apparently decided that


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Murphy’s instruction constituted harassment, both because he was being asked to do the

job of another employee and because earlier in the day, according to Clack, Murphy

purposefully bumped into him while walking past him.       Clack therefore informed Murphy

that it was not his job to clean up the debris in question and that, in any event, he did not

have the correct machinery, a certain kind of forklift, to do the job. W hen Murphy insisted

that Clack complete the task, Clack left the area, telling Murphy that he was going to go call

McDougal.     Murphy apparently instructed Clack to call his union representative instead

because Murphy had already determined that he was going to send Clack home for

insubordination. After Clack was sent home, W ooten and another employee accomplished

the clean-up task in a few minutes using implements available on the shop floor.


       The day after the incident, management had a meeting with Clack to get his side of

the story. After further investigation, Lancaster fired Clack for insubordination, an action

punishable by termination even for a first offense under the terms of the prevailing collective

bargaining agreement. Lancaster said that he made the final termination decision based

on McDougal’s recommendation. Murphy, whose position as foreman was considered non-

managerial, apparently had the authority to suspend but not terminate employees. There

is no evidence in the record that Murphy was personally involved in the termination decision.


       Clack filed a grievance regarding his termination and, after arbitration, was reinstated

with back pay, based on the arbitrator’s determination that there were “mitigating

circumstances” relating to Clack’s failure to follow Murphy’s directions. Subsequently, Clack


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filed the instant action claiming that his termination constituted racial discrimination and

retaliation in violation of Title VII. The district court granted summary judgment to the

defendants, holding that although the plaintiff established a prima facie case of both

discrimination and retaliation, he had not demonstrated the defendants’ stated reason for

termination – insubordination – was pretextual.


                                        DISCUSSION


       W e review a district court’s grant of summary judgment de novo. See Michigan Bell

Tel. Co. v. MFS Intelenet of Michigan, Inc., 339 F.3d 428, 433 (6th Cir. 2003). Summary

judgment is appropriate where “there is no genuine issue as to any material fact and... the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). W e must view all

evidence and any factual inferences in the light most favorable to the non-moving party.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Once

the moving party has sufficiently informed the district court of the basis for its motion, the

burden shifts to the non-moving party to demonstrate why summary judgment would be

inappropriate, and they must do more than simply show that there is some metaphysical

doubt as to the material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986);

Matsushita, 475 U.S. at 586. The mere existence of a scintilla of evidence in support of the

plaintiff’s position is not sufficient; rather, the plaintiff must come forward with affirmative

evidence upon which a rational jury could find for the plaintiff. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 252, 256-57 (1986).


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Clack v. Rock-Tenn Company

Race Discrimination


       The plaintiff claims that his termination constituted discrimination based on his race,

in violation of 42 U.S.C. § 2000e-2(a)(1).      In the absence of direct evidence of race

discrimination, the district court determined, under the familiar burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that the plaintiff had

established a prima facie case through circumstantial evidence. That determination is not

seriously contested on appeal. 1


       The plaintiff having established a prima facie case, the burden of production then

shifted to the defendant to articulate a non-discriminatory reason or reasons for the adverse

employment action. See Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).

Rock-Tenn contends on appeal that it discharged this burden by establishing a non-

discriminatory reason for Clack’s termination – his insubordination – and that the plaintiff

cannot show that its proffered reason for the action was pretextual. In response, the plaintiff

provides a lengthy discussion of factual circumstances that he contends show pretext,

including Murphy’s alleged ongoing harassment, Murphy’s mishandling of the incident at

issue, Clack’s contention that he was not in fact insubordinate, and management’s alleged


       1
        On appeal, the defendants argue that one of the McDonnell Douglas prongs – that
a person outside the protected class was treated more favorably than the plaintiff or that he
was replaced by a person outside the protected class – was not proven. This contention
is based on the argument that “Rock-Tenn did not intentionally replace Plaintiff with a white
employee, but that the terms of the CBA required that the next person with seniority fill that
position and such person happened to be white.” As the magistrate judge noted, however,
the defendants provided no authority for this proposition, and we have found none.

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“historic lack of investigation” into his grievances. However, none of the evidence he offers

in support of his argument, save for one affidavit, directly addresses the issue of racial

animosity in connection with the decision to fire Clack.


       The crucial affidavit is from Ted Bonine, a former foreman at Rock-Tenn who worked

with Murphy from 1999 until approximately 2002. In it, Bonine recalled observing Murphy

make racists remarks and single out black employees, including Kenneth Clack, for harsher

treatment based on race. He also indicated that the management was generally aware of

Murphy’s racism and tolerated it.2


       2
           The affidavit reads in relevant part:

         Repeatedly throughout my employment, Mr. Murphy used offensive slurs
         toward black employees, calling them “niggers” and “Black mother fuckers.”
         [He] repeatedly expressed his opinion that the black employees were
generally lazy and “Good for nothing” . . . . As a general rule, Mr. Murphy would always treat
the African American employees more harshly than white employees in almost every
nuance of the job. [He] also seemed to single out Mr. Kenneth Clack for his racially based
rage. [He] was aware of the outcome of Mr. Clack’s previous lawsuit and spoke of it on
several occasions. It seemed to make him angry. On one occasion I went with Mr. Murphy
to Norcross, Georgia for training. During that trip, Mr. Murphy repeatedly spoke of Mr. Clack
on a racially offensive level. Both on the above trip and at other times, Mr. Murphy made
the comments “KC is nothing but a fucking nigger” and “I am going to get rid of him.” Mr.
Murphy also referred to Mr. Clack as a “black mother fucker.” On one occasion in 2001, Mr.
Murphy made the com ment that he was going to throw Mr. Clack in the pulper and make
him into paper. On another occasion, Mr. Murphy stated he wanted to “string him up.” I
complained to management about Murphy but to my knowledge nothing was done about
it. It was my observation, experience and belief that Murphy’s general attitude and feelings
were known throughout the facility. As a foreman, I believe that I respected all of the
employees and felt that I had a good relationship with the black employees. This made Mr.
Murphy angry and he commented that I was too friendly with the black employees. He
would also become angry when I would defend a black employee or ask him to stop his
offensive language.


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       The magistrate judge disregarded the Bonine affidavit because “the statements do

not show racial animus by the decisionmaker at the relevant time.” The court reasoned that

the statements attributed to Murphy were not relevant because they were “far removed, at

least three years and possibly more, from the period immediately surrounding the events

in February 2005" and, moreover, that “[e]ven assuming that Murphy had racial animus

toward black employees and Plaintiff in particular, he was not the decisionmaker” and

“Lancaster, who was the decisionmaker, was aware of the history between Murphy and

Plaintiff and no evidence has been presented of any racial bias or comments of Lancaster.”


       On appeal, the defendants ask us to go a step further and conclude not only that the

statements recounted in Bonine’s affidavit are irrelevant but also that they are time-barred

under the statute of limitations because Clack’s claim of racial discrimination is based upon

a discrete act, rather than a continuing violation. However, in National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002) the Supreme Court explicitly held that in Title

VII cases claiming a violation based on a discrete act of discrimination, a plaintiff is not

prevented from using otherwise time-barred incidents as “background evidence in support

of a timely claim.” Here, Clack is not attempting to recover based on Murphy’s past

statements but, as explicitly allowed by Morgan, is simply using them as background

evidence to prove pretext. See Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d

776, 786, n.4 (7th Cir. 2004) (“The district court concluded that because certain events cited

by Davis occurred outside the 300 days from the date he filed his . . . charge. . . they could

not be relied upon as evidence of pretext. However, the Supreme Court has made clear in

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. . . [Morgan]. . . that where, as here, the plaintiff timely alleged a discrete discriminatory act

(i.e., his termination based on his race and in retaliation for filing prior charges), acts outside

of the statutory time frame may be used to support that claim.”).


       Turning to an evaluation of the statements, we have held that “[u]nless the

statements or conduct of nondecisionmakers can be imputed to the ultimate decisionmaker,

such statements or conduct can not suffice to satisfy the plaintiff’s burden of demonstrating

animus.” Noble v. Blinker Int’l., Inc., 391 F.3d 715, 724 (6th Cir. 2004) (internal quotations,

citation, and alterations omitted). Thus, “[i]n evaluating the relevancy of discriminatory

remarks” as part of a pretext analysis, “this court examines the identity of the speaker,” as

well as “the substance of the remarks.” Hopkins v. Electronic Data Sys. Corp., 196 F.3d

655, 665 (6th Cir. 1999). Moreover, we have noted in conducting such an analysis that


       [a]n isolated discriminatory remark made by one with no managerial authority
       over the challenged personnel decisions is not considered indicative of . . .
       discrimination. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1161
       (6th Cir. 1990) (“[S]tatement by an intermediate level management official is
       not indicative of discrimination when the ultimate decision to discharge is
       made by an upper level official.”). This court later explained, however, that
       the McDonald rule was never intended to apply formalistically, and that
       remarks by those who did not independently have the authority or did not
       directly exercise their authority to fire the plaintiff, but who nevertheless
       played a meaningful role in the decision to terminate the plaintiff, were
       relevant. See Wells [v. New Cherokee Corp.], 58 F.3d [233,] 237-38 [6th Cir.
       1995)]. . . . Similarly, the discriminatory rem arks of those who may have
       influenced the [personnel decision] . . . may be relevant when the plaintiff
       challenges the motive behind that decision.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998) (emphasis

added); see also Noble, 391 F.3d at 723 (opinions or attitudes of the non-decision-maker

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must “influence[]” or “otherwise cause” the discharge); Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 141 (2000) (protected trait “must have actually played a role in

[the employer’s decisionmaking] process and had a determinative influence on the

outcome”) (internal quotations and citation omitted; alternation in original). W e have further

expounded upon the rationale behind refusing to employ a “formalistic” application of the

McDonald rule:


       If we applied the rule rigidly, employers could simply create a post for the
       manager in charge of firing employees and isolate that person so that he or
       she never met the unlucky employees. Supervisors with no official authority
       to discharge would effectively make firing decisions before informing this
       manager, who would then act on the decisions, and the employer would not
       be liable even if the supervisors admitted discrimination. Companies may not
       so easily insulate themselves from liability for discriminatory discharges.


Wells, 58 F.3d at 238; see also Arendale v. City of Memphis, 519 F.3d 587, 604 n. 13 (6th

Cir. 2008) (“W hen an adverse hiring decision is made by a supervisor who lacks

impermissible bias, but that supervisor was influenced by another individual who was

motivated by such bias, this court has held that the employer may be held liable under a

“rubber-stamp” or “cat’s paw” theory of liability. . . . [T]he term ‘cat’s paw’ refers to one used

by another to accomplish his purposes.”) (internal quotations and citations omitted). In sum,

“[i]f the comments were made by a person in a position to influence the alleged employment

decision, they will be relevant unless they are so isolated and ambiguous as to be

nonprobative.” Hopkins, 196 F.3d at 665. The timing of any remarks, specifically how

remote in time they were to the employment action at issue, also has bearing on their


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relevance. See Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (discounting

allegedly ageist comments made by plaintiff’s supervisors that were “remote in time.”)


       In this case, the substance of Murphy’s remarks and purported actions are certainly

indicative of animus based on race. As the defendants appear to concede on appeal, the

objectionable statements are not isolated nor ambiguous. Moreover, we are not convinced

that the district court was correct in holding that the time lag here was dispositive. Even

though Bonine observed Murphy’s behavior approximately three years prior to Clack’s

termination, viewing the record in a the light most favorable to the plaintiff, we find nothing

to suggest that such a significant level of racial hostility would have been dispelled merely

by the passage of time.


       The more pertinent question is whether Murphy’s racist attitude “influenced” or

“otherwise caused” the undisputed decision maker, Lancaster, to terminate Clack. Although

Clack asserts in his brief that Murphy had “significant involvement in the decision to

terminate Appellant,” there is not much in the record to support this statement. There is no

indication on the record that Murphy was included in discussions regarding the termination

or had any kind of say in the ultimate decision. It is undisputed, as the plaintiff points out,

that Murphy filed a written report on the incident that was given to management, but it is

also undisputed that management held a meeting in which Clack was given the opportunity

to present his side of the story and that Lancaster made the decision to terminate the

plaintiff only after hearing his version of events at this meeting. Moreover, Lancaster


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explained that in his opinion, unlike being instructed to do something far outside of his job

description, such as cleaning the toilets, the job of cleaning the debris near the machine

was sufficiently within Clack’s job responsibility that it was insubordinate not to comply with

Murphy’s direction and, instead, walk off the floor to call McDougal. Lancaster took the not

unreasonable position that Clack should have completed the task as instructed and raised

the issue with McDougal at a later point, if necessary.


       The record suggests that Rock-Tenn’s upper management knew of animosity

between Clack and Murphy and may have known that Murphy had made hostile, racist

comments about Clack, if not directly to him. That knowledge alone is not sufficient per se

to support the conclusion that Murphy influenced Lancaster’s ultimate decision to terminate

Clack’s employment. Lancaster’s testimony regarding his reasoning for the termination

indicates that Lancaster engaged in an independent investigation and made a decision

based on that investigation. A number of cases from this court suggest that this is enough

to sterilize the termination from the taint of Murphy’s racial animus. In Wilson v. Stroh

Companies, Inc., 952 F.2d 942, 946 (6th Cir. 1992), for example, we held that a direct

supervisor’s racial animus could not be imputed to a manager who made the ultimate

termination decision when the supervisor reported the incident in question but the

termination decision was based on management’s independent investigation. Likewise,

Murphy’s role in this case appears to be limited to reporting the incident, permitting

Lancaster to form his own conclusions after hearing Clack’s version of events.



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       Clack cites Ercegovitch v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.

1998), in support of his argument that Murphy’s racial bias should be imputed to higher-ups

in the company. That case, however, is distinguishable on its facts. In Ercegovitch, several

individuals occupying high positions in Goodyear’s hierarchy, including the vice president

overseeing the entire division at issue, had made ageist remarks. W e found that there was

a material question of fact regarding whether the vice president, who was “involved in some

parts of the discussion” regarding the adverse employment action was “in a position to

influence” the decision. Id. at 355. W e also found that the vice president was “in a position

to shape the attitudes, policies, and decisions of the division’s managers” including the

ultimate decision makers, and moreover, that ageist comments by several other members

of senior management suggested the possibility of a “discriminatory atmosphere at the

defendant’s workplace” that could “in turn . . . serve as circumstantial evidence of

individualized discrimination directed at the plaintiff.” Id. at 355-56. In the case at hand, by

contrast, there is no indication that Murphy held an analogous position of influence or that

he took part in any discussions regarding the termination decision, nor did Clack offer

evidence that members of upper management had made racist comments sufficient to

create an inference of an overall “discriminatory atmosphere” emanating from the top.


       Finally, we conclude that the magistrate judge did not err in rejecting Clack’s claim

that he was not actually insubordinate but rather was simply doing what he was told, i.e.,

attempting to contact McDougal if he felt harassed. As we have previously explained, “so

long as the employer honestly believed in the proffered reason given for its employment

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action” and that honest belief is “reasonably grounded on particularized facts that were

before it at the time of the employment action,” a plaintiff “cannot establish pretext even if

the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.”

Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). Of course, a purported error

“too obvious to be unintentional” may indicate pretext. Fischbach v. District of Columbia

Dept. of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). Nevertheless, “arguing about

the accuracy of the employer’s assessment is [merely] a distraction because the question

is not whether the employer’s reasons for a decision are right but whether the employer’s

description of its reasons is honest.” Smith, 155 F.3d at 806 (internal quotations and

citation omitted). Here, although there may be some room to argue that Clack’s actions

were not insubordinate, a conclusion later reached in hindsight by the arbitrator, Lancaster’s

conclusion that Clack was insubordinate in leaving his station to call McDougal, rather than

performing the assigned task before contacting McDougal, is certainly not “obvious” error,

and there is nothing in the record to suggest discriminatory intent on Lancaster’s part. As

for Clack’s assertion that he was told to call McDougal immediately if he felt harassed by

Murphy, the facts viewed in the light most favorable to the plaintiff suggest at most that

there was a misunderstanding between Lancaster and Clack regarding whether he could

stop work to m ake such a call or, on the contrary, whether he should wait for a more

appropriate time, especially given that Murphy’s direction was not unreasonable. In any

event, Lancaster’s interpretation of the facts that he drew from his investigation of the

incident is not so irrational or obviously erroneous that one must conclude that it is


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dishonest. Even the arbitrator noted that the “best path” for Clack to have followed would

have been to “comply and grieve later.”


Retaliation


       For the same reason that Clack cannot establish that his termination was the result

of racial discrimination, he has also failed to establish that he was fired in retaliation for

activity protected by Title VII, 42 U.S.C. § 2000e-3(a). In the absence of any direct evidence

of retaliation, Clack initially presented circumstantial evidence to establish a prima facie

case of retaliation through the McDonnell Douglas burden-shifting framework. After a

detailed analysis of the facts, the district court noted the tem poral proximity between a

December 2004 meeting held to discuss the merits of a formal grievance that Clack had

filed in November 2004 and his eventual termination in February 2005 on other grounds,

and held that the relatively short period of two months was sufficient to establish a prima

facie case of retaliation.


       Nevertheless, as with his claim of racial discrimination under the McDonnell Douglas

framework, once the plaintiff established a prima facie case, the defendants could and did

provide a non-discriminatory reason for Clack’s termination, thereby refuting the charge of

retaliation. It was then up to the plaintiff to show that the basis for the adverse employment

decision was merely a pretext for retaliation. See Balmer v. HCA, Inc., 423 F.3d 606, 614

(6th Cir. 2005). The district court determined that the plaintiff had failed to establish pretext,



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and we agree with this conclusion. On appeal, Clack does not distinguish the evidence

proffered to establish pretext for racial discrimination from that he now relies upon to show

pretext for retaliation.   Specifically, he reiterates a number of factual circumstances,

including – as we previously noted – Murphy’s alleged ongoing harassment, Murphy’s

mishandling of the incident at issue, Clack’s contention that he was not in fact

insubordinate, and management’s alleged “historic lack of investigation” into his grievances.

As with his racial discrimination claim, however, the flaw in Clack’s argument is that only

a few pieces of evidence arguably relate directly to the alleged retaliation, and that proof is

much less substantial and less relevant than the evidence of racial animus reflected in the

Bonine affidavit.


       There is scant other evidence of retaliatory motive unrelated to Murphy.            For

example, an affidavit from union representative Danelle Rogers indicates that, after Clack

was terminated, “Murphy seemed very happy,” that “[h]is reaction was not consistent with

a regular termination,” and that Murphy stated that he had “finally got rid of [Clack].”

Another Rock-Tenn employee, Tommy Earvin, echoed Rogers’s observation, repeating in

an affidavit Murphy’s statements “I got the hammer” and “I got him,” referring to Clack. But,

as noted above, Murphy was not the Rock-Tenn employee in a position to take retaliatory

action against Clack, at least not in the form of ordering his termination. That person was

Lancaster, and although the plaintiff points out that Lancaster admitted in his deposition that

Clack’s filing of an earlier grievance against him “bother[ed]” him, this admission, standing

alone, is insufficient to establish retaliation by Lancaster by more than a mere scintilla of

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evidence. It is clearly not sufficient to take the issue to a jury. Anderson, 477 U.S. at

256-57.


                                    CONCLUSION


      For the reasons set out above, we AFFIRM the district court’s grant of summary

judgment.




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       KAREN NELSON MOORE, Circuit Judge, dissenting. The majority holds that

Rock-Tenn provided a legitimate, non-discriminatory reason for its termination of Kenneth

Clack—insubordination—which Clack did not show to be pretextual.              Specifically, the

majority concludes that the racial animus of Clack’s direct supervisor, Bill Murphy, who

reported the incident in question, should not be imputed to the upper-level manager who

made the ultimate termination decision because that decision was based on management’s

independent investigation into the incident. I believe that this investigation was insufficient

to sterilize the termination decision from the taint of Murphy’s racial animus because it failed

to consider what role Murphy’s racial animus may have played in the incident. Accordingly,

I respectfully dissent.


       “[W ]hen a plaintiff challenges his termination as motivated by a supervisor’s

discriminatory animus, he must offer evidence of a ‘causal nexus’ between the ultimate

decisionmaker’s decision to terminate the plaintiff and the supervisor’s discriminatory

animus.” Madden v. Chattanooga City Wide Serv. Dep’t, --- F.3d ---, No. 08-5082, 2008 W L

4977335, at *9 (6th Cir. Nov. 25, 2008). If the plaintiff can show that “the supervisor’s racial

animus was the cause of the termination or somehow influenced the ultimate

decisionmaker,” such that the ultimate decision maker “‘acted as the conduit of [the

supervisor’s] prejudice—his cat’s paw—the innocence of [the ultimate decisionmaker] would

not spare the company from liability.’” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 877

(6th Cir. 2001) (quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)).



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       The majority contends that the investigation conducted by Rock-Tenn management

was sufficient to break the causal chain between Murphy’s racial animus and the ultimate

decision by Rock-Tenn’s general manager, W alter Lancaster, to terminate Clack. Although

the record indicates that Lancaster based his termination decision on that investigation, an

independent investigation is not always sufficient to absolve an employer of Title VII liability.

In Wilson v. Stroh Companies, 952 F.2d 942, 946 (6th Cir. 1992), we held that a direct

supervisor’s racial animus could not be imputed to the ultimate decisionmakers when the

termination decision was based on an independent investigation, coupled with a lack of

evidence that the supervisor had failed to report similar misconduct by white employees and

a lack of evidence that the ultimate decisionmakers had relied on a false record created by

the supervisor. By contrast, in Madden we held that the racial animus of a supervisor could

be imputed to the ultimate decisionmakers, notwithstanding the fact of an independent

investigation, when there was evidence that the supervisor did not report similar misconduct

by white employees.       2008 W L 4977335, at *9-10.         Thus, although the fact of an

independent investigation is an important factor, it is not always sufficient to break the

causal chain between a supervisor’s racial animus and the ultimate decisionmaker’s

decision to terminate the employee.


       I do not believe that the investigation conducted here was sufficient to sterilize the

termination from the taint of Murphy’s racial animus. The investigation consisted of (1) an

initial meeting of the plant superintendent, Mike McDougal, with Clack and union

representatives, and (2) a follow-up meeting of Lancaster with Clack, Murphy, and various

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superintendents and union representatives. Although McDougal and Lancaster gave Clack

an opportunity to present his version of the events surrounding his alleged insubordination,

nothing in the record suggests that McDougal or Lancaster investigated the possible role

that Murphy’s discriminatory animus may have played in the incident.           Given Clack’s

contention that he was essentially framed or set up by Murphy and the inference that

McDougal and Lancaster knew of Murphy’s racial animus, I believe that the investigation

conducted here was severely deficient.


        Taking the facts in the light most favorable to Clack and drawing reasonable

inferences in his favor, we must assume that McDougal and Lancaster knew about

Murphy’s racist remarks, his discriminatory treatment of African-American employees, and

his hostility toward Clack in particular. The affidavit of Ted Bonine, a former foreman at

Rock-Tenn who worked with Murphy between 1999 and 2002, detailed a series of racist

remarks by Murphy, some of which were specifically directed at Clack. Bonine stated that

he had “complained to management about Murphy but to my knowledge nothing was done

about it.” J.A. at 367 (Bonine Aff. at 2). Bonine further stated that “[i]t was my observation,

experience and belief that Murphy’s general attitude and feelings were known throughout

the facility.” Id.


        Because we must assume that McDougal and Lancaster had knowledge of Murphy’s

racial animus, they had reason to suspect that Murphy’s racist motives could have played

a role in the incident for which Clack was fired. At the very least, they had reason to


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suspect that there were additional relevant facts surrounding the incident beyond Clack’s

allegedly insubordinate conduct. However, the investigation conducted by McDougal and

Lancaster did nothing to probe what role Murphy’s racial animus might have played in the

events in question. Instead, they conducted an investigation with blinders on, narrowly

focused on the details of Clack’s conduct. During the meeting of McDougal with Clack and

union representatives on February 2, 2005, for instance, McDougal never inquired into what

role, if any, Murphy’s racial animus may have played in the incident. See J.A. at 133-63

(Meeting Tr.). Not surprisingly given the limited focus of the investigation, Lancaster’s

explanation of his decision to terminate Clack had a similarly narrow focus on Clack’s

alleged misconduct, without any discussion of the potential role of Murphy’s racism. As

Lancaster stated at his deposition, Clack “was directed to do a cleanup job and he refused

to do it . . . . I saw that as a violation of our general regulations and discharged him.” J.A.

at 464 (Lancaster Tr. at 72).


       Of course, an independent investigation could have absolved Rock-Tenn of Title VII

liability. W hen faced with the conflicting stories of two em ployees, “there is probably no

practical step an employer can take beyond independently investigating the misconduct

charges that will reduce the chances of an employee’s racism influencing its behavior.”

Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 920 (7th Cir.), cert. denied, 128 S. Ct.

357 (2007). However, I believe that the type of narrowly focused investigation conducted

here is insufficient in this context. W hen an ultimate decisionmaker has knowledge of a

supervisor’s racial animus and that supervisor reports an employee in the protected class

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leading to his termination, management’s investigation should not focus only on the

employee’s alleged misconduct. Instead, management should broaden the scope of the

investigation to consider what role, if any, the supervisor’s racial animus may have played

in the events in question. I believe that this approach effectively balances competing

concerns. On the one hand, it takes seriously the allegations of employees such as Clack

who say they were framed for misconduct by racist coworkers or supervisors. At the same

time, it is not too demanding of employers, requiring only that they conduct a meaningful

and fair-minded investigation that at least considers the possibility that the known

discriminatory animus of the supervisor played a role in the disputed events.


       Because the investigation by Rock-Tenn management failed to investigate or

consider whether Murphy’s racial animus played a role in the incident in question, I believe

that it was insufficient to sterilize Lancaster’s decision to terminate Clack from the taint of

Murphy’s discriminatory animus. Accordingly, I believe that Clack sufficiently showed that

the proferred reason for his termination was pretextual and that his case should have been

submitted to a jury. For the foregoing reasons, I would reverse the district court’s grant of

summary judgment in favor of Rock-Tenn on the discrimination claim and therefore

respectfully dissent.




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