                          STATE OF MICHIGAN

                            COURT OF APPEALS



WAYNE WATKINS,                                                       UNPUBLISHED
                                                                     May 10, 2018
               Plaintiff-Appellant,

v                                                                    No. 337288
                                                                     Saginaw Circuit Court
SAGINAW’S FAMOUS FRIED CHICKEN, LLC,                                 LC No. 16-029582-CZ
doing business as POPEYE’S CHICKEN, and
EARL PEGUES,

               Defendants-Appellees.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Plaintiff appeals the trial court’s order granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (no genuine issue
of material facts). For the reasons set forth below, we reverse the trial court’s grant of summary
disposition and remand for further proceedings consistent with this opinion.

                                            I. FACTS

        Plaintiff was a shift manager at the Saginaw, Michigan location of defendant Earl
Pegues’s (Pegues) Popeye’s franchise, defendant Saginaw’s Famous Fried Chicken dba Popeye’s
(Popeye’s). Defendant Pruitt (Pruitt) was Popeye’s head of operation and plaintiff’s supervisor.
Plaintiff was hired on October 22, 2012. In January of 2014, Pegues’s franchise established an
anti-fraternization policy in response to issues that arose when franchise employees began dating
one another. Pruitt admitted that he was accused of fraternizing with and favoring certain
employees, although he denied the veracity of these allegations. Fred Alexander, the then
general manager of the Popeye’s, testified that he knew of at least one relationship that Pruitt had
engaged in with another employee. Plaintiff testified that he had warned Pegues of these alleged
relationships multiple times during his employment with the franchise, but Pegues denied that
plaintiff ever mentioned the relationships or that plaintiff openly opposed sexual harassment of
female staffs. Plaintiff admitted that he did not know whether these relationships were
consensual.

        On May 30, 2014, the father of an employee, Tiffani Pipkins, reported to plaintiff that
Pruitt had approached Pipkins in the parking lot and requested to see her “twins,” referring to her
breasts. Plaintiff reported the allegation to Pegues, and told him that “we’ve had this problem for


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some time.” Plaintiff also expressed his expectation that an investigation would be conducted,
and that the sexual harassments would be stopped. Pegues investigated the matter the next day
and spoke to Pruitt, who denied making the statement to Pipkins. Both Pegues and Pruitt agreed
that such a statement would constitute sexual harassment.

        Three days later, on June 2, 2014, plaintiff was issued a three-day suspension without
pay, ostensibly because of problems with the Hazard Analysis Critical Control Point (HACCP)
log, which records food temperatures to ensure that they do not fall below levels safe for
consumption, and customer complaints. Plaintiff had never been threatened with suspension or
termination prior to informing Pegues of Pruitt’s alleged sexual harassment. According to
Pegues, after being told of the suspension, plaintiff came to him and said, “This is bullshit.”
Plaintiff denied cursing or using profanities during this discussion. Pruitt added that plaintiff
went on to say, “[W]e need to be taking care of more important things other than the HACCP log
when we got . . . a sexual harassment case that’s going on.”

        The parties presented conflicting testimony regarding whether plaintiff’s employment
was terminated after the suspension. Pegues testified that when plaintiff returned to work, he
simply handed in his uniform, stating, “Well, you all was [sic] going to fire me anyway.”
However, during his deposition, Pegues indicated that that plaintiff was terminated because he
“developed an attitude.” Ultimately, Pegues conceded that plaintiff was not fired for cursing.
Pegues also discussed numerous customer complaints concerning plaintiff, but added that
plaintiff was not terminated for these complaints. Pegues also explained that plaintiff was
disciplined for multiple failures to complete the HACCP log, which he was required to complete
as part of his duties. Defendants produced evidence of several incidents when plaintiff had failed
to complete the log, one instance where plaintiff was disciplined for failing to report to work, and
one instance of discipline stemming from “unacceptable customer service practices.” Even so,
Pegues specifically conceded that plaintiff was not terminated for failure to perform his
managerial duties or because of customer complaints. Pegues also acknowledged that, usually,
failure to complete an HACCP log results in a verbal warning. Indeed, no manager had ever
been suspended or fired for failure to complete the HACCP log. Pegues and Pruitt claimed that
they had no intention of terminating plaintiff’s employment.

       Plaintiff testified that when he returned to work, Pruitt gave him a document, and
informed him that he had been terminated. The document explained that the termination was due
to “[plaintiff’s] actions, poor job performance[,] and creating an intimidating environment.”
After learning of his termination, plaintiff repeated his concerns about the alleged sexual
harassment, but Pruitt assured him that “everything will come to light,” after an investigation.

        On July 9, 2014, plaintiff filed charges of unlawful retaliation and discrimination against
Popeye’s with the Equal Employment Opportunity Commission (EEOC). The EEOC
investigated plaintiff’s case, and concluded that reasonable cause existed to find that Title VII
was violated, and that defendants unlawfully retaliated against plaintiff. After conciliation
failed, plaintiff brought this action against defendants for unlawful retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 USC 2000e through 42 USC 2000e-17, and the Elliot-
Larsen Civil Rights Act (ELCRA), MCL 37.2101 through MCL 37.2803. Plaintiff alleged that
he objected to a continual pattern of sexual harassment by Pruitt, and that he was suspended and
subsequently terminated as a result.


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        Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and
(10). In granting defendant’s motion for summary disposition, the trial court stated that, prior to
May 30, 2014, plaintiff had never discussed Pruitt’s alleged pattern of engaging in sexual
relationships with Popeye’s employees. The trial court then indicated that Pruitt’s alleged
comment about Pipkins’ breasts was an isolated incident, lacking the necessary severity and
pervasiveness to constitute a hostile work environment. The court was also persuaded by
defendants’ proffered evidence of plaintiff’s failures to properly complete the HACCP log, meet
store goals, show up for work, refrain from cursing, and appropriately respond to customer
complaints. For these reasons, the trial court held that plaintiff did not oppose sexual
harassment, and thus did not engage in any protected activity. The court concluded that
plaintiff’s claims failed to establish causation because the alleged protected activity did not occur
closely enough in time to defendants’ adverse employment action. The trial court also held that
the “[p]arties are not in dispute that Mr. Pegues may be dismissed as a Defendant under Title
VII,” and although it granted summary disposition to Popeye’s on this claim, it did not discuss
Popeye’s with regard to Title VII.

                                II. LIABILITY UNDER TITLE VII

       On appeal, plaintiff argues that the trial court impermissibly dismissed his Title VII
claims against Popeye’s on the basis of the parties’ stipulation that Pegues was not subject to
individual liability under Title VII. We agree.1

        The parties stipulated to the dismissal of Pegues as a defendant under Title VII. This is
appropriate because Title VII does not provide for individual liability. See Police v Suders, 542
US 129, 138 n 4; 124 S Ct 2342; 159 L Ed 2d 204 (2004); Wathen v Gen Electric Co, 115 F3d
400, 405-406 (CA 6, 1997). However, in dismissing plaintiff’s Title VII against Popeye’s, the
trial court expressed no reason for its decision, and did not specifically hold that plaintiff’s Title
VII claims against Popeye’s were without merit. Because there was no evidence to suggest that



1
  We review de novo a trial court’s decision on a motion for summary disposition. Dextrom v
Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion under MCR
2.116(C)(8) tests the legal sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 119;
597 NW2d 817 (1999). “All well-pleaded factual allegations are accepted as true and construed
in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted
only where the claims alleged are so clearly unenforceable as a matter of law that no factual
development could possibly justify recovery.” Id. (citations and quotation marks omitted).
When considering motions under subrule (C)(8), a court only examines the pleadings. MCR
2.116(G)(5). Summary disposition under MCR 2.116(C)(10) is proper when “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Jimkoski v Shupe, 282 Mich App 1, 4; 763 NW2d 1 (2008). “In reviewing a motion under
MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich
App 618, 621; 689 NW2d 506 (2004).



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Popeye’s would not qualify as an “employer” under 42 USC 2000e(b), it was improper for the
trial court to dismiss plaintiff’s Title VII claims against Popeye’s.

                         III. PRIMA FACIE CASE OF RETALIATION

       We agree with plaintiff that contrary to the trial court’s holding, he presented sufficient
evidence to establish a prima facie case of retaliation.

       Under Title VII, employers are prohibited from retaliating against employees who oppose
“unlawful employment practice[s].” Wasek v Arrow Energy Servs, Inc, 682 F3d 463, 468 (CA 6,
2012) (quotation marks and citation omitted). The analysis of a retaliation claim under the
ELCRA is largely identical to the analysis under Title VII. See Garg v Macomb Co Community
Mental Health Servs, 472 Mich 263, 273; 696 NW2d 646 (2005). Where a plaintiff attempts to
prove retaliation by using circumstantial evidence, the

       claims are evaluated using the burden-shifting framework of McDonnell Douglas
       v Green, 411 US 792, 801-805; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Under that
       framework, [plaintiff] must show that she (1) engaged in a protected activity, (2)
       that [defendant] knew of her protected conduct, (3) that [defendant] took an
       adverse employment action against her after her protected conduct, and (4) that
       there was a causal connection between the exercise of [plaintiff’s] protected right
       and the adverse employment action taken by [defendant]. If [plaintiff] makes out
       this prima facie case, the burden shifts to [defendant] to produce a legitimate,
       non-retaliatory reason for its action. Assuming that [defendant] is able to produce
       such an explanation, the burden shifts back to [plaintiff] to put forward competent
       evidence from which a reasonable jury could conclude that the stated reason is
       merely pretextual. [Montell v Diversified Clinical Servs, Inc, 757 F3d 497, 504-
       505 (CA 6, 2014) (citations omitted).]

       In the instant case, defendants do not dispute that plaintiff has met the second and third
elements of retaliation under Title VII and the ELCRA. Therefore, only two elements—
protected activity and causal connection—are in dispute.

                                  A. PROTECTED ACTIVITY

        There are two types of protected activity: (1) the plaintiff may participate in a proceeding
with the EEOC; or (2) the plaintiff may oppose “an apparent Title VII violation.” Wasek, 682
F3d at 469 (emphasis added). The opposed conduct need not be an actual violation of Title VII
in order to establish a protected activity. Id. In opposing such an apparent violation, the plaintiff
must have merely had a “reasonable and good-faith belief that the harassing acts he was
reporting were Title VII violations.” Id. (quotation marks and citation omitted).

        We agree with plaintiff’s argument that the trial court erred in holding that he did not
present sufficient evidence to establish that he opposed an apparent Title VII violation. In
Johnson v Univ of Cincinnati, 215 F3d 561, 580 (CA 6, 2000), the Court recognized that
“complaining to anyone (management, unions, other employees, or newspapers) about allegedly
unlawful practices” is a valid form of opposition. In this case, it is not disputed that plaintiff
alerted Pegues of Pruitt’s allegedly harassing comment. However, plaintiff testified that he did


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not stop there. Plaintiff indicated that he told Pegues that this was not the first instance of Pruitt
sexually harassing fellow employees. Plaintiff also stated that he demanded an investigation into
the matter so that the alleged pattern of sexual harassment would be stopped. See Sawicki v
American Plastic Toys, Inc, 180 F Supp 2d 910, 918 (ED Mich, 2001) (acknowledging that
sufficient personal opposition to alleged sexual harassment “could have taken the form of a
verbal complaint by the plaintiff to management claiming that [the harasser] engaged in the
sexual harassment of [] subordinates.”). Although defendants presented testimony of other
witnesses that dispute whether plaintiff did more than alert Pegues to Pipkins’s father’s presence
and his complaint as to Pruitt’s alleged harassment, summary disposition is improper when the
question turns on the credibility of the witnesses and the weight to give each witness’s testimony.
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).

        Plaintiff is correct that the trial court erred when it interpreted Radtke v Everett, 442 Mich
368; 501 NW2d 155 (1993), to mean that Pruitt’s alleged statement to Pipkins amounted to an
isolated incident that did not rise to the level of severity and persistence necessary to establish a
hostile work environment for sexual harassment purposes. In Radtke, 442 Mich at 394, the Court
acknowledged that, generally, single instances of sexual harassment do not create a hostile work
environment. Id. at 394. However, it explained that isolated incidents may create a hostile
environment when the experience is “extremely traumatic.” Id. at 395. The Court noted that
physical restraint by an employer seeking to coerce sexual relations was an example of a
sufficiently traumatic incident. Id. at 395-396. Barring extreme circumstances, a plaintiff must
usually prove that: “(1) the employer failed to rectify a problem after adequate notice, and (2) a
continuous or periodic problem existed or a repetition of an episode was likely to occur.” Id. at
395.2 See also Montell, 757 F3d at 504-505, holding that a supervisor who made sexually
suggestive comments on one occasion to an employee reporting to him could lead an opposing
employee to a reasonable, good faith belief that his conduct constituted sexual harassment where:
(1) the supervisor prefaced his comments by acknowledging that they could result in disciplinary
action against him; (2) once the comments were reported by the opposing plaintiff, the person to
whom the report was made did not indicate that the comments could not have amounted to
sexual harassment; and (3) the person to whom the comments were reported investigated to
determine whether the comments were made.

        In this case, although it was not alleged that Pruitt physically assaulted Pipkins, he was
her supervisor, and was a partial owner of the Popeye’s franchise. Pruitt answered only to
Pegues, substantially limiting Pipkins’s available recourse if she were to have reported Pruitt’s
alleged conduct to anyone within the Popeye’s franchise. This is a relevant factor in determining




2
  The United States Supreme Court applied this analysis to situations of employer retaliation in
Clark Co Sch Dist v Breeden, 532 US 268, 270-271; 121 S Ct 1508; 149 L Ed 2d 509 (2001). In
that case, the Court held that, while a plaintiff opposing employer conduct need only have a
reasonable belief that the conduct was unlawful, no reasonable person could believe that “simple
teasing, offhand comments, and isolated incidents (unless extremely serious)” are severe and
pervasive enough to constitute sexual harassment. Id.



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whether a single incident of sexual harassment is sufficient to establish a reasonable, good faith
belief that an employer’s conduct amounted to sexual harassment. Radtke, 442 Mich at 395-396.

       Moreover, Pruitt’s alleged request to see Pipkins’s “twins” can easily be understood as a
sexual solicitation. Although Pruitt did not preface his alleged statement by acknowledging that
they could get him into trouble, he did testify that such statements—if he actually made them—
would have constituted sexual harassment. Pegues agreed. Once plaintiff reported the
comments to Pegues, plaintiff was not informed that such statements could not have constituted
sexual harassment. Rather, Pegues testified that he conducted an investigation into the matter.

        Additionally, although it is clear that plaintiff’s alleged previous complaints regarding
Pruitt’s history of relationships with fellow employees do not constitute opposing conduct, it has
not been established that such prior complaints cannot serve as evidence that defendants “failed
to rectify a problem after adequate notice,” and that “a continuous or periodic problem existed”
such that plaintiff’s belief that Pruitt had engaged in unlawful sexual harassment was reasonable
and in good faith. Radtke, 442 Mich at 395.

        Relying on Pettit v Steppingstone, Ctr for the Potentially Gifted, 429 Fed Appx 524, 530-
531 (CA 6, 2011), and to Coleman v G4S Secure Solutions (USA), Inc, ___ F Supp 2d ___ (ED
Mich, 2016) (Docket No. 16-10250), slip op at 1, defendants argue that plaintiff did not engage
in protected activity because it was within plaintiff’s duties as a shift manager to report claims of
sexual harassment to a higher authority within Popeye’s. We disagree.

         In this case, neither party has presented evidence that it was within plaintiff’s duties as a
shift manager to report allegations of sexual harassment to higher management or to conduct any
investigation of such misconduct stemming from the actions of his supervisor. Pegues testified
that it was within the scope of plaintiff’s responsibilities to respond to customer complaints. The
extent of any action plaintiff was required to take thereafter, is unclear. However, while
plaintiff’s job description may have included a duty to make Pegues aware of the accusations
against Pruitt, it is unlikely that plaintiff’s position would require him to demand that Pegues
conduct some manner of investigation into Pruitt’s alleged history of sexual harassment. It is
true that expressing expectations of Pegues’s future conduct was unlikely to be in plaintiff’s own
interests, suggesting that plaintiff’s actions were done pursuant to his duties as a shift manager.
See Pettit, 429 Fed Appx at 531 (acknowledging that a plaintiff in a retaliation action may still
find relief—even where the plaintiff’s alleged protected activities occurred within the scope of
her duties of employment—when the plaintiff steps outside of her official capacity and acts in
her own interest, as opposed to the interests of her employer). However, because making
demands of superior employer authorities is so rarely required—or even advisable—of
employees, it would appear that plaintiff’s conduct went beyond any duty to relay the
information regarding Pipkins’s father’s visit to Pegues. No evidence has been offered to
suggest that plaintiff merely engaged in the usual performance of his job. See Coleman, slip op
at 6-7.

        Further, we find unpersuasive defendants’ argument that plaintiff did not engage in
protected activity because plaintiff’s alleged previous reports regarding Pruitt concerned
consensual relationships with other employees. Defendants are correct that vague objections are
insufficient to establish protected opposition under the ELCRA, where such objections do not


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indicate the plaintiff’s belief that the actions complained of were illegal. Indeed, plaintiff
admitted that he was not sure as to whether these past relationships were consensual. However,
plaintiff did not stop at these vague assertions. Plaintiff further testified that he expressed his
concern to Pegues that Pruitt had sexually assaulted Pipkins in this instance. Moreover, plaintiff
stated that he expressed his expectation that Pruitt would be investigated and that the alleged
sexual harassment would be stopped. These statements clearly indicate plaintiff’s opposition to
an unlawful activity.

        Therefore, when the facts presented are viewed in the light most favorable to plaintiff, it
is sufficient to conclude that plaintiff may have had a reasonable, good-faith belief that he had
reported unlawful sexual harassment. See id. at 505.

                                        B. CAUSATION

        Defendants argue that plaintiff has failed to establish a causal connection between
plaintiff’s protected activity and the adverse employment action. We disagree.

        The Sixth Circuit has described the burden of establishing a prima facie case as “a burden
easily met.” EEOC v Avery Dennison Corp, 104 F3d 858, 861 (CA 6, 1997) (quotation marks
and citations omitted). To satisfy the causal link element, a plaintiff is required to “proffer
evidence sufficient to raise the inference that her protected activity was the likely reason for the
adverse action.” Id. (quotation marks and citations omitted). “Accordingly, at the prima facie
stage the burden is minimal, requiring the plaintiff to put forth some evidence to deduce a causal
connection between the retaliatory action and the protected activity and requiring the court to
draw reasonable inferences from that evidence, providing it is credible.” Id.

        Courts are cautioned against inferring causation on the basis of temporal proximity,
alone. Wasek, 682 F3d at 471-472. It is possible for a plaintiff to establish a causal connection
using only evidence of temporal proximity “[w]here an adverse employment action occurs very
close in time after an employer learns of a protected activity.” Mickey v Zeidler Tool & Die Co,
516 F3d 516, 525 (CA 6, 2008). Where some time has elapsed between the adverse employment
action and the point when the employer learns of the protected activity, however, “the employee
must couple temporal proximity with other evidence of retaliatory conduct.” Id.

        We conclude that material issues of fact exist as to whether plaintiff established a causal
connection between the protected activity and termination of his employment. Plaintiff was
issued a three-day suspension only three days after he spoke to Pegues about Pruitt’s alleged
conduct, and expressed his expectation that subsequent action would be taken to put an end to
such actions. Plaintiff was terminated from Popeye’s less than two weeks following his
protected activity. Additionally, even if temporal proximity was insufficient, evidence that
defendants knew of plaintiff’s protected activity and the fact that plaintiff was suspended and
terminated less than 13 days after his protected activity, both establish an “inference of causation
where the particular circumstances strengthen the inference of causation.” McNett v Hardin
Comm Fed Credit Union, 118 Fed Appx 960, 965 (CA 6, 2004). In McNett, the Court held that
the plaintiff had met the element of causation not only because of temporal proximity (13 days
between plaintiff’s termination and the protected activity), but also because of the employer’s
knowledge of the protected activity. Id.


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        As to the ELCRA, the question is not merely whether there was a causal link between the
protected activity and the adverse employment action, but whether the opposition was a
“significant factor” in the adverse employment decision. Barrett v Kirtland Community College,
245 Mich App 306, 315; 628 NW2d 63 (2001). This requires a showing of more than a causal
link. Id. Evidence must be sufficient to enable a reasonable finder of fact to infer that the
adverse action had a discriminatory or retaliatory basis. Rymal v Baergen, 262 Mich App 274,
303; 686 NW2d 241 (2004). This can be established with evidence that the adverse action
occurred shortly after the protected activity. Id. Sufficient temporal proximity was found in
Rymal when the adverse action began within approximately one month of the protected activity.
Id. at 281, 311-312.

        As discussed above, defendants’ adverse employment action occurred within two weeks
of plaintiff’s protected activity. The witnesses’ testimony also indicates that plaintiff was treated
differently from other employees. Pegues first testified that plaintiff was terminated due to
plaintiff developing an “attitude.” However, Pegues also testified that two other employees had
developed an “attitude,” but were not fired for their conduct. It was later said that plaintiff was
fired for cursing, although Pegues contradicted himself when he acknowledged that plaintiff was
not fired for that reason. Pegues then testified that plaintiff was fired for failure to fill out the
HACCP log in fulfillment of his duties as a shift manager, but this was again dispelled when
both Pegues and Pruitt testified that they had never terminated an employee for failure to
complete a HACCP log in the past. Pruitt further testified that he had never even suspended an
employee for such failure. Pegues also admitted that plaintiff was not terminated for failure to
complete managerial duties, customer complaints, or for failure to report to work.

        Defendants’ conflicting testimony only serves to lend credibility to plaintiff’s assertion
that the true reason for his suspension and ultimate termination was his protected activity.
Where evidence conflicts, summary disposition is improper. DeFlaviis v Lord & Taylor, Inc,
223 Mich App 432, 436; 566 NW2d 661 (1997). Accordingly, plaintiff’s claims under Title VII
and the ELCRA are not defeated at the causal link stage, and plaintiff has successfully
established his prima facie case for the purpose of withstanding summary disposition.

                                           D. PRETEXT

       Finally, plaintiff argues that he has created a question of material fact as to pretext that
precludes the grant of summary disposition. We agree.

        In this next step of the burden-shifting analysis, we are to determine whether plaintiff has
“demonstrate[d] that the proffered reason was not the true reason for the employment decision.”
Montell, 757 F 3d at 508 (quotation marks and citation omitted). When analyzing whether the
proffered reasons is merely pretextual, we are mindful that “[p]retext is a commonsense inquiry:
did the employer fire the employee for the stated reason or not.?” Id. (quotation marks and
citations omitted). “ ‘At the summary disposition stage, the issue is whether plaintiff has
produced evidence from which a jury could reasonably doubt the employer’s explanation. If so,
her prima facie case is sufficient to support an inference of discrimination at trial.’ ” Id.(citation
omitted).




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      The trial court stated that defendants had other legitimate reasons to terminate plaintiff’s
employment. Specifically, it found that:

       Plaintiff was written up at least five times for not filling out the HACCP log, not
       meeting store goals, not showing up for work, and not handling customer
       complaints correctly. Plaintiff was suspended for three days due to poor work
       performance that Defendant’s tried to counsel him on. During the suspension
       meeting, Plaintiff became very upset and refused to sign the suspension notice.
       On his way out, the Plaintiff told Mr. Pegues that the suspension was “bullshit[.”]

However, defendants provided contradicting evidence regarding their decision to terminate
plaintiff’s employment. For instance, Pegues testified that failure to complete an HACCP log
results in verbal warning, and that he had never fired any manager for failure to maintain an
HACCP log. Pruitt also admitted that before this incident, he had never fire or suspended any
manager for failure to complete an HACCP log. Further, although defendants alleged that
plaintiff was terminated because of customer’s complaint, Pegues admitted in his deposition that
plaintiff was not terminated for customer complaints or for failure to report to work. In fact,
Pegues even offered plaintiff a general manager position with the franchise in May of 2014,
noting that he was happy with plaintiff’s work. Regarding defendants’ allegation that plaintiff
told Pegues that the suspension was “bullshit, Pegues conceded that plaintiff was not fired for
cursing. Indeed, there was testimony that two other employees had developed an “attitude,” but
were not fired for their conduct. “The credibility findings and the determinations [regarding
these conducts] are questions of fact on which there is conflicting evidence in the record. This
constitutes a genuine issue of material fact, and consequently must be resolved by a jury, not at
summary judgment.” Montell, 757 F 3d at 509.

        Accordingly, we reverse the trial court’s grant of summary disposition and remand for
further proceedings consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael J. Kelly
                                                            /s/ Colleen A. O'Brien




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