                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0217p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                              X
                                               -
 EVERETT CHATTMAN,
                                               -
                                 Plaintiff-Appellant,
                                               -
                                               -
                                                   No. 10-5306
         v.
                                               ,
                                                >
                                               -
                      Defendant-Appellee. -
 TOHO TENAX AMERICA, INC,
                                              N
                Appeal from the United States District Court
             for the Eastern District of Tennessee at Knoxville.
             No. 08-00454—Thomas A. Varlan, District Judge.
                                      Argued: June 9, 2011
                              Decided and Filed: July 13, 2012
    Before: WHITE and STRANCH, Circuit Judges; and COHN, District Judge.*

                                      _________________

                                            COUNSEL
ARGUED: Mark N. Foster, LAW OFFICE OF MARK N. FOSTER, Rockwood,
Tennessee, for Appellant. Teresa Rider Bult, CONSTANGY, BROOKS & SMITH,
Nashville, Tennessee, for Appellee. ON BRIEF: Mark N. Foster, LAW OFFICE OF
MARK N. FOSTER, Rockwood, Tennessee, for Appellant. Teresa Rider Bult,
CONSTANGY, BROOKS & SMITH, Nashville, Tennessee, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        JANE B. STRANCH, Circuit Judge. Everett Chattman appeals the district
court’s grant of summary judgment to his employer on his claims of racial




        *
           The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                  1
No. 10-5306        Chattman v. Toho Tenax Am.                                     Page 2


discrimination.   Following recent Supreme Court precedent, we REVERSE and
REMAND for trial.

                                 I. BACKGROUND

A.     Factual Background

       It is undisputed that Plaintiff-Appellant Everett “Sly” Chattman had been an able
employee at the Rockwood, Tennessee plant of Defendant-Appellee Toho Tenax
America, Inc. (“Toho”) for 20 years at the time the events giving rise to this litigation
took place. During the relevant time period, Chattman, an African American, worked
as a shipping coordinator. Chattman alleges that Jeff Tullock, a Caucasian and then
Human Resources Director at the Rockwood facility, harbored racial bias against
African Americans, including Chattman himself. Chattman alleges Tullock’s racial
animus motivated Tullock’s recommendation that upper management terminate
Chattman’s employment following an incident of horseplay.

       Chattman offers three incidents in which Tullock made racial comments as
evidence of his animosity toward African Americans. In the Spring of 2007, Tullock
told a “joke” that O.J. Simpson was innocent and that Nicole Brown was killed by their
son because O.J. Simpson responded to a question from his son by answering “go axe
your mother.” Around February 2008, Tullock responded to another employee’s
complaint that her son had gotten into trouble at school for fighting by saying “you know
what my grandmother always says about boys scuffling? That’s how the nigger
graveyard got full.” A few days later, Tullock commented about then-Presidential-
candidate Barack Obama by saying “well you better look close at Obama’s running mate
because Americans won’t allow a nigger president.”

       On October 2, 2007, Chattman and a Caucasian coworker, Frank Johnson,
engaged in horseplay on the facility floor. According to Chattman, he asked Johnson to
help move some boxes to another area. Johnson reacted by joking with Chattman that
“you are not my damn boss.” Chattman then bear-hugged Johnson and told him to help,
released him, and both began laughing. Johnson subsequently went to the hospital to be
No. 10-5306           Chattman v. Toho Tenax Am.                                                Page 3


examined and filed an incident report for workers’ compensation purposes. Chattman
alleges he thought nothing of this incident, as he and his coworkers commonly engaged
in this type of horseplay.

         Later on the same day, Chattman was called to a meeting with Tullock, Toho’s
Vice President of Operations, Ben Chandler, and Chattman’s immediate supervisor,
Scottie Smith. Tullock informed Chattman that Johnson had said Chattman body-
slammed him. Tullock also stated he had received written statements from two
witnesses confirming the attack.1            Tullock and Chandler immediately suspended
Chattman pending a full investigation of the incident.2

         From this point forward, Tullock appears to have misinformed various members
of upper management about the investigation process. For example, Chandler, in his
deposition, stated that he, Tullock, and Smith discussed what to do about the incident
and agreed not to make any decision or recommendation until after speaking to someone
at the corporation’s Human Resources and Legal departments. However, after that
meeting, Tullock called Jeff Lane, Vice President of Human Resources at Toho’s parent
company, and recommended Chattman be terminated. In his deposition, Tullock
recalled telling Lane that “Ben [Chandler] and I were both recommending termination
and Scotty [Smith] as well.” Chandler and Smith both deny they recommended
termination.3

         Further, according to Lane’s deposition testimony, he told Tullock to conduct a
full investigation, suggesting no final decision had been made as to disciplining
Chattman. However, Tullock told Verbruggen in a subsequent e-mail that he had spoken

         1
         In Chandler’s deposition, he testified that the two witnesses did not actually corroborate
Johnson’s story as far as the body-slamming.
         2
           Chattman returned to work on October 9, 2007 and was paid for the work hours he missed due
to the suspension.
         3
          Smith, in his declaration, states that he was never asked to make a recommendation and did not
give one. However, he later opined to Chandler that he should not fire Chattman over this incident.
Chandler, in his deposition, stated that given the information he had at the time he would have
recommended termination, but that he did not do so because he was waiting for input from Lane and the
corporate legal department.
                                                   3
No. 10-5306           Chattman v. Toho Tenax Am.                                                 Page 4


to Lane and that Lane had agreed to terminate Chattman during their phone
conversation.

         Connie Jackson, Toho’s IT Manager, sent Verbruggen an email at the end of the
workday on October 2, 2007 to warn Verbruggen of facts she believed important:

         [Y]ou need to know the following. First, horseplay is very common on
         the plant floor. It is part of the plant culture and this incident is by no
         means an isolated case. Even if the policy says that horseplay is not
         tolerated, I believe the accepted practice takes precedence, legally. The
         fact that Frank [Johnson] claims to be injured makes the result different,
         but the conduct and the intention are the same as the horseplay that goes
         on every day. Second, Jeff Tullock has told at least one racial joke, that
         several members of management overheard, which could bring his
         motivation into question. And third, Frank has a history of making
         questionable worker’s comp claims and receiving time off and money
         associated with them. If Sly is fired and he pursues legal action, these
         facts will be brought out in the discovery phase of the case. This could
         be very damaging to our company.

(R.28-5, Jackson Email 10/2/2007).

         The next day, October 3, 2007, Verbruggen called Lane and told him that
Johnson had been telling coworkers differing versions of his story about what happened
with Chattman and asked Lane to accompany him to Rockwood to investigate the
incident. On October 4, 2007, Lane and Verbruggen interviewed Chattman, Johnson,
and the two witnesses. Bothered by the inconsistencies between Johnson’s version of
the horseplay incident and the versions recounted by the other three, Lane and
Verbruggen agreed that Chattman and Johnson both be given a final written warning.4
According to Toho policy, a final written warning is the corrective action that is taken
immediately prior to termination, and it remains active for one year. During that period,
the employee is ineligible for promotions. On approximately the 8th or 9th of October,
Lane instructed Tullock to prepare a formal written warning for Chattman. Lane



         4
          Defendant admits that, while Chattman was disciplined for engaging in horseplay, Johnson was
not; he was disciplined for exaggerating his injuries and falsely recounting the details of the incident.
                                                   4
No. 10-5306           Chattman v. Toho Tenax Am.                                                 Page 5


concedes, however, that Tullock did not actually do so until December 20, when he
completed an “Associate Counseling Notice,” back-dated to October 2.

         Chattman alleges that the final written warning kept him from receiving a
promotion.5 Smith, Chattman’s immediate supervisor, had accepted a position out-of-
state, and late in 2007 the Rockwood management began discussing who would take
over Smith’s supervisory duties. Sometime after the investigation but before December
20, 2007, Smith and another supervisor, Jamie Nelson, agreed that a new shipping
supervisor position should be created to cover Smith’s duties and that Chattman should
be given the position. Smith states that he and Nelson met with Chandler and made their
recommendation, and that after that meeting Smith “thought at that point that Chandler
had agreed to promote Plaintiff.” Smith did not believe at that time that the company
was going to discipline, or had disciplined, Chattman for the Johnson incident.
Chattman alleges that before Tullock gave him the written warning in December,
Chandler told Chattman that he would promote him to a supervisory position “when all
this dies down.” Tullock’s issuance of the final written warning on December 20 made
Chattman ineligible for a promotion at that time.

         Ultimately, Chandler decided not to create the proposed shipping supervisor
position, but instead distributed Smith’s duties among existing employees.                           No
applications were ever accepted for such a position. Chandler alleges that Chattman’s
final written warning had no bearing on his decision not to create the supervisory
position. As of the date of oral argument, Chattman remains employed at Toho as a
shipping coordinator.




         5
          Contrary to the district court’s finding, Chattman consistently challenged Tullock’s motivation
and involvement in his suspension and the ultimate decision to issue Chattman a final written warning.
Thus, Chattman has not waived this theory of discrimination nor limited himself to a failure-to-promote
claim. Any potential nexus between the prior discipline and Chattman’s claim of a lost promotion
opportunity could be relevant in calculating damages. These are all matters for determination by a jury.
                                                   5
No. 10-5306            Chattman v. Toho Tenax Am.                                                  Page 6


B.       Procedural History

         Chattman’s complaint asserted claims under Title VII and the Tennessee Human
Rights Act (“THRA”). After answering, Defendant moved for summary judgment,
stating that Chattman had pointed to no adverse employment action taken against him
and that, even if such action was taken, Chattman could not prove pretext.

         On February 22, 2010, the district court granted Defendant’s motion for summary
judgment. Specifically, the district court, addressing Chattman’s THRA claim in the
context of Title VII, applied the McDonnell-Douglas burden-shifting framework to
those claims and found that Chattman had failed to make a prima facie case for failure
to promote, and also had failed to prove pretext in the face of Defendant’s
nondiscriminatory reasons for disciplining him. Chattman now appeals the district
court’s grant of summary judgment to Toho on his Title VII and THRA claims, raising
a number of alleged errors.6 The parties address these claims as if they were one single
claim, as the district court did.

                                          II. DISCUSSION

A.       Standard of Review

         This Court reviews the grant of summary judgment de novo. Spees v. James
Marine, Inc., 617 F.3d 380, 388 (6th Cir. 2010). Summary judgment is appropriate if
the record shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (2010). The moving
party has the burden of proving the absence of a genuine issue of material fact and its
entitlement to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.


         6
           Chattman’s amended complaint also included a claim under 42 U.S.C. § 1981. The district court
found that proving a prima facie case under § 1981 is even more demanding than under Title VII, and thus
Chattman had failed to prove his case under § 1981. On appeal, Chattman has waived any challenge to
the district court’s judgment on his § 1981 claim. His initial appellate brief makes no mention of § 1981.
In his reply brief, Chattman states that he did not waive a challenge to the § 1981 ruling, but instead mis-
cited to 42 U.S.C. § 1983 in his initial brief, and this typographical error should not be construed as a
waiver. However, Chattman’s initial brief cites to § 1983 only one time, in his jurisdictional statement.
This single citation, unaccompanied by any argument, is insufficient to preserve the issue. See McPherson
v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
                                                     6
No. 10-5306        Chattman v. Toho Tenax Am.                                      Page 7


317, 323 (1986). All facts, including inferences, are viewed in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).

B.     Chattman’s Title VII and THRA Claims

       Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U .S.C. § 2000e–2(a)(1).
The THRA does so as well. See Tenn. Code Ann. § 4–21–401(a)(1); see also Bailey v.
USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008) (“The analysis of claims
brought pursuant to the THRA is identical to the analysis used for Title VII claims.”).
Chattman argues he has provided direct evidence that creates a genuine issue of material
fact that Tullock was motivated by racial animus when he reported Chattman’s horseplay
incident and recommended Chattman’s termination. Chattman also argues this racial
animus can be imputed to Lane and Verbruggen, who ultimately decided to issue
Chattman a final written warning.

       1.      Direct Evidence of Racial Discrimination

       An employer becomes liable under Title VII when the plaintiff “establish[es] that
the defendant had a discriminatory intent or motive for taking a job-related action.”
Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009) (quoting Watson v. Fort Worth Bank
& Trust, 487 U.S. 977, 985-86 (1988)) (internal quotation marks omitted). The plaintiff
may show this discriminatory intent through the use of either direct or circumstantial
evidence.

       Whether a plaintiff’s evidence may be properly categorized as direct or
circumstantial is of importance, because a direct-evidence claim is removed from the
burden-shifting framework of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
Instead, the plaintiff’s case-in-chief is met, and “the burden shifts to the employer to

                                            7
No. 10-5306           Chattman v. Toho Tenax Am.                                                Page 8


prove by a preponderance of the evidence that it would have made the same decision
absent the impermissible motive.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004).

         Chattman argues that the district court erred in applying the McDonnell-Douglas
analysis because he presented direct evidence of Defendant’s discriminatory intent.
He offers the three racist statements made by Tullock as direct evidence of
discrimination. See supra at 2. The statements are particularly troubling because they
include both racist language and the threat or suggestion of violence or death based on
race. No inference is required to gleam from those statements that Tullock harbored
racial animus towards African Americans. We have previously held that similar “racist
comments” constitute direct evidence of discriminatory intent and Tullock’s statements
do so here. See Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1249 (6th Cir. 1995),
overruled on other grounds by Gross v. FBL Fin. Servs. Inc., 557 U.S. 167 (2009);
Dicarlo, 358 F.3d at 416 (supervisor’s use of slur was direct evidence of national-origin
discrimination).7

         There is some tension in our precedent on the issue of when direct evidence can
be based on discriminatory statements that are not temporally proximate to an
employment decision.          See Blair v. Henry Filters, Inc., 505 F.3d 517,                  525-26
(6th Cir. 2008) (discussing tension), overruled on other grounds by Gross, 557 U.S. 167.
Subsequent to our holdings in Talley and Dicarlo, we have held that when managers
make age-biased statements outside the context of the decision to discharge the plaintiff,
the statements are not direct evidence of age discrimination. Rowan v. Lockheed Martin
Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004). Even if we assume that these cases
are in conflict, we are bound by Talley and DiCarlo, which were both decided before
Rowan. Blair, 505 F.3d at 526; see also 6 Cir. R. 206(c) (“Reported panel opinions are
binding on subsequent panels.”). However, we need not determine the extent of any




         7
          The statements in Talley and Dicarlo were made by decisionmakers, while the statements in this
case were made by a nondecisionmaker, Tullock. Whether evidence of Tullock’s racial animosity can be
imputed Toho will be addressed below.
                                                   8
No. 10-5306         Chattman v. Toho Tenax Am.                                      Page 9


potential conflict here. As shown below, even if we analyze Chattman’s claims using
a circumstantial-evidence test, the claims survive summary judgment.

       2.      Circumstantial Evidence of Discrimination

       The three-step framework developed in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), guides the analysis of discrimination claims based upon
circumstantial evidence. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
“The burden is first on the plaintiff to demonstrate a prima facie case of race
discrimination; it then shifts to the employer to offer a legitimate, non-discriminatory
explanation for its actions; finally, the burden shifts back to the plaintiff to show
pretext.” Id. To make a prima facie case of disparate-treatment discrimination based on
disciplinary action, the plaintiff must prove:

       (1) membership in the protected class; (2) that he or she suffered from an
       adverse action; (3) that he or she was qualified for the position; and (4)
       that he or she was treated differently from similarly situated members of
       the unprotected class.

Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394, 402-05 (6th Cir. 1999).

               a.      Prima Facie Case

       No one disputes that Chattman, an African American, is a member of a protected
racial class. As to the second prong, this Circuit requires a Title VII plaintiff to show
that his discipline resulted in “a materially adverse change in the terms of [his]
employment.” Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 885 (6th Cir. 1996). It is
undisputed that a final written warning makes a Toho employee ineligible for
promotions or raises for a one-year period. Before the discipline, Chattman was eligible
to be promoted. After the discipline, he was ineligible. While it is disputed whether
Chattman would have received a promotion during that one-year period but for the
warning, the relevant analysis at this point is simply whether the terms of Chattman’s
employment adversely changed. They did.


                                            9
No. 10-5306        Chattman v. Toho Tenax Am.                                    Page 10


       As to the third prong, Defendant has never argued that Chattman was not
qualified for the position of shipping coordinator or that Chattman’s discipline had
anything to do with unsatisfactory job performance. Chattman’s twenty-year record of
employment without any corrective action would suggest that his performance and
qualifications were not questioned.

       The fourth prong is the element that Defendant contests and that the district court
found dispositive, although both addressed the issue of similar discipline in the context
of pretext. To satisfy this element, Chattman bears the burden of proving that white
employees, “similar in all of the relevant aspects” of employment, were not similarly
disciplined. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998). “The plaintiff need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be considered ‘similarly-
situated.’” Id. Which aspects are to be considered depends on the circumstances of the
individual case.

       It appears that all discipline at the Rockwood facility went through Tullock as
HR Director, and all discipline was subject to the standards set out in the “corrective
action” section of the company’s manual. The parties dispute whether Chattman’s
conduct was similar “in all relevant aspects” to the conduct of other white employees
who engaged in horseplay but were not disciplined.

       Defendant argues that the employees Chattman uses as comparators were not
similarly situated, nor were those engaged in horseplay treated any differently than
Chattman. As to Chattman’s conduct, Defendant asserts that there were no other
instances of horseplay which resulted in another employee sustaining a workers’
compensation injury, and thus other instances of horseplay were not similar in all
relevant aspects. However, Chattman alleges that his conduct was no more severe than
that of other, white employees. He alleges that his bear hug of Johnson was in line with
the punching and other acts of physical horseplay by white employees that took place
on the plant floor, including: giving another employee a wedgie; punching another

                                           10
No. 10-5306            Chattman v. Toho Tenax Am.                                                Page 11


employee on multiple occasions, producing a bruise at least once; pretending to run over
another employee with a forklift; and grabbing another employee to scare him or joke
with him.

         As to Johnson’s injury and workers’ compensation claim, Chattman has also
presented evidence that Johnson exaggerated, if not invented, his injury and, therefore,
made a false workers’ compensation claim. An email from Toho’s IT Manager to
Verbruggen and the testimony of the two witnesses upon re-interview constitute
supporting evidence. Under Chattman’s version of the facts, Verbruggen and Lane
should have known, by the time they finished their investigation, that Johnson, at best,
was exaggerating the severity of the horseplay and his injuries.8 This knowledge
eliminates the “differentiating or mitigating circumstances that would distinguish
[Chattman’s] conduct” from that of other others engaged in horseplay. Ercegovich at
352. Thus, Chattman has created a genuine dispute of material fact as to whether other
similarly situated white employees were also similarly disciplined.

                  b.       Nondiscriminatory Justification

         While the district court found Chattman’s failure to make his prima facie case
dispositive, it went on to conclude, arguendo, that Toho had given a legitimate,
nondiscriminatory reason for its discipline of Chattman. Specifically, the district court
pointed to Toho’s policy, stated in its manual, that termination is an acceptable
punishment for a violation of the company’s safety rules, of which horseplay is one.
This constitutes a sufficient, legitimate reason for the final written warning Chattman
was given. See, e.g., Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 549 (6th Cir.
2009) (holding that purportedly violating company’s code of conduct is a facially
legitimate, nondiscriminatory reason for termination). Because Toho’s burden is merely




         8
           Chattman correctly points out that Johnson’s final written warning “is not an example of
Defendant’s stance towards ‘similar’ horseplay amongst Defendant’s white employees,” because Johnson
was not disciplined for his horseplay at all, but was instead disciplined for “interfering with Defendant’s
investigation.”
                                                   11
No. 10-5306          Chattman v. Toho Tenax Am.                                    Page 12


one of production, not persuasion, Upshaw, 576 F.3d at 585, Toho has satisfied its
burden at this stage of the framework.

                c.      Pretext

        Under Manzer v. Diamond Shamrock Chemicals. Co., a plaintiff can establish
pretext by showing “(1) that the proffered reasons had no basis in fact, (2) that the
proffered reasons did not actually motivate his [discipline], or (3) that they were
insufficient to motivate discharge.” 29 F.3d 1078, 1084 (6th Cir. 1994) (citations
omitted). The first category implicates evidence “that the proffered bases for the
plaintiff’s discharge never happened,” and the second category requires that the plaintiff
“admit[] the factual basis underlying the employer’s proffered explanation and further
admit[] that such conduct could motivate dismissal.” Id. The third category of pretext
consists of evidence that other employees, particularly employees outside the protected
class, were not disciplined even though they engaged in substantially identical conduct
to that which the employer contends motivated its discipline of the plaintiff. Id.
A showing of the third type of pretext is a direct attack on the credibility of the
employer’s proffered motivation for disciplining the plaintiff and, if shown, “permits,
but does not require, the factfinder to infer illegal discrimination from the plaintiff’s
prima facie case.” Id. In other words, it creates a genuine, triable issue of material fact.

        Chattman admits that he engaged in horseplay with Johnson, which belies the
first category. Chattman, however, does not admit the factual basis underlying Toho’s
proffered legitimate reason for his discipline, which eliminates the second category of
pretext. Instead, he argues that the horseplay he engaged in was no more severe than
other acts of horseplay, and that the severity was exaggerated by Johnson, as confirmed
by other employees and known to Toho management at the time of the discipline. Toho
has offered no response to Chattman’s list of comparable horseplay incidents by white
employees that did not result in discipline. Toho instead relies on two key facts: that




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No. 10-5306          Chattman v. Toho Tenax Am.                                            Page 13


Johnson was also disciplined for the incident with Chattman,9 and that the severity of
the Chattman/Johnson incident prompted the discipline because Johnson was injured and
a workers’ compensation report was filed.

        This Court’s decision in Madden v. Chattanooga City Wide Serv. Department,
549 F.3d 666 (6th Cir. 2008), is instructive in sorting out these competing arguments.
There, faced with the employer’s argument that the plaintiff’s proffers of similar
incidents not leading to termination were less severe incidents of misconduct, we
focused on both severity and commonality. As to severity of the comparator incidents,
we found that the employer “fails to show how the other incidents . . . are any less
hazardous than the incident for which [plaintiff] was terminated.” Id. at 677. Similarly,
Toho does not attempt to explain how the other incidents, which included such behavior
as “grabbing,” “violently attacking,” and “punching,” are any less severe than
Chattman’s bear-hugging Johnson.

        On commonality, in Madden, we relied on the plaintiff’s offer of evidence that
the use of firecrackers was commonplace at CWS as sufficient evidence to allow the
factfinder “to infer that senior managers should have known that fireworks were being
used.” Id. No such inference is even necessary here. Chattman has presented direct
evidence that Toho management knew about common incidents of horseplay but failed
to act on them. Specifically, in his tape-recorded conversation with Chattman, Tullock
admitted he is aware of other incidents of horseplay of comparable severity. In his
declaration, Verbruggen acknowledged receiving an email from Toho’s IT Manager on
the day of the Chattman/Johnson incident informing Verbruggen that horseplay is
commonplace and always goes unpunished. Finally, Smith stated that “[d]uring my
13 years of working at Toho, I observed that horseplay is common in Toho’s Rockwood
facility.”




        9
          This argument fails because, as already noted, Johnson was not disciplined for engaging in
horseplay. See infra at 4 n.4, 11 n.8.
                                                13
No. 10-5306            Chattman v. Toho Tenax Am.                                                 Page 14


         Based on the above, Chattman has presented a genuine dispute of material fact
as to whether employees outside the protected class were not disciplined even though
they engaged in similar conduct to that which Toho contends motivated its discipline of
Chattman. Manzer, 29 F.3d at 1084. Therefore, Chattman has presented a genuine
dispute over whether Toho’s proffered justification was pretext for racial discrimination.

         3.       Cat’s-Paw Theory of Liability

         Proof of Tullock’s racial animosity toward African Americans does not establish
Toho’s liability, however, because Tullock was not the decisionmaker with regard to the
relevant adverse employment action, Chattman’s final written warning. Instead, Lane
and Verbruggen made the ultimate decision to discipline Chattman. We have recognized
that a plaintiff can show discrimination by offering evidence of a “‘causal nexus’
between the ultimate decisionmaker’s decision to [discipline] the plaintiff and the
supervisor’s discriminatory animus.” Madden, 549 F.3d at 677. Plaintiff must show that
“[b]y relying on this discriminatory information flow, the ultimate decisionmakers acted
as the conduit of [the supervisor’s] prejudice—his cat’s paw.” Id. at 678 (internal
quotation marks omitted).

         A recent Supreme Court decision, Staub v. Proctor Hospital, 131 S. Ct. 1186
(2011), published after the district court’s decision, elaborated on the cat’s paw theory
of liability. Its reasoning is dispositive in this case.10 At issue in Staub was a
disciplinary warning issued by Staub’s supervisor, who was shown to have
discriminatory animus toward Staub’s military status. Id. at 1189. Staub’s ultimate
termination, although not issued by the discriminatory supervisor, was based on that
supervisor’s earlier disciplinary warning. Id.



         10
            While Staub dealt with a discrimination claim pursuant to the Uniformed Services Employment
and Reemployment Rights Act of 1994 (“USERRA”), the Court’s reasoning applies with equal force to
claims brought under Title VII. Both employ a “motivating factor” standard of causation, 38 U.S.C.
§ 4311(c); 42 U.S.C. § 2000e-2(m), and the Staub Court launched its analysis from a discussion of that
phrase, 131 S. Ct. at 1192. See also Staub, 131 S. Ct. at 1191 (noting the two statutes are “very similar”);
Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 836 (6th Cir. 2012) (considering Staub analysis
for a Title VII claim).
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No. 10-5306         Chattman v. Toho Tenax Am.                                   Page 15


       The Staub Court defined cat’s paw liability as follows: “if a supervisor performs
an act motivated by [discriminatory] animus that is intended by the supervisor to cause
an adverse employment action, and that if that act is a proximate cause of the ultimate
employment action, then the employer is liable under the [Act].” Id. at 1194 (emphasis
in original). The Court relied on principles of agency and tort law to impute a lower-
level supervisor’s discriminatory animus to an otherwise unbiased decisionmaker,
thereby rendering the employer liable for the non-decisionmaker’s discrimination. Id.
at 1191-92. If the decisionmaker undertakes an investigation which results in an adverse
action for reasons unrelated to the supervisor’s original biased action, the employer will
not be liable. Id. at 1193. However, “the supervisor’s biased report may remain a causal
factor if the independent investigation takes it into account without determining that the
adverse action was, apart from the supervisor’s recommendation, entirely justified.” Id.
(emphasis added). Thus, the Court refused to completely absolve an employer based on
its claim to have conducted an independent investigation. Id. (“We are aware of no
principle in tort or agency law under which an employer’s mere conduct of an
independent investigation has a claim-preclusive effect.”).

       Therefore, under Staub, Tullock’s racial animus can be imputed to Lane and
Verbruggen where Chattman can show (1) Tullock “intended . . . to cause an adverse
employment action” and (2) Tullock’s discriminatory action “is a proximate cause of the
ultimate employment action.” Id. at 1194.

               a.      Tullock’s Intent

       This element is easily satisfied. Chattman has shown that a genuine issue of
material fact exists regarding whether Tullock intended that Chattman be disciplined.
Both Smith and Chandler denied making any recommendation about disciplining
Chattman for the horseplay incident during their initial meeting with Tullock. Yet,
Tullock called Lane and informed him that          “Ben [Chandler] and I were both
recommending termination and Scotty [Smith] as well.” After being told by Lane to
conduct a further investigation, but without being informed of a disciplinary

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No. 10-5306            Chattman v. Toho Tenax Am.                                               Page 16


determination, Tullock then emailed Verbruggen, claiming that Lane had agreed to
terminate Chattman during their phone conversation.                           Tullock made these
recommendations knowing them to be false and notwithstanding the fact that horseplay
was common at the plant and several white employees had engaged in horseplay without
being terminated.

         The Staub Court made clear that

         [a]nimus and responsibility for the adverse action can both be attributed
         to the earlier agent [Tullock] if the adverse action is the intended
         consequence of that agent’s discriminatory conduct. So long as the agent
         intends, for discriminatory reasons, that the adverse action occur, he has
         the scienter required to be liable under [the Act].

131 S. Ct. at 1192. There can be little doubt that Tullock desired Chattman’s termination
when he made his recommendation and fabricated the agreement of the other supervisors
in his communications with Lane and Verbruggen. We do not believe the fact that
Chattman was ultimately issued a final written warning rather than terminated alters this
or the proximate cause analysis.11

                  b.       Proximate Causation

         To survive summary judgment, the second prong of the Staub rule requires
Chattman to show the existence of a genuine issue of material fact as to whether
Tullock’s actions were a proximate cause of Chattman’s discipline. Cat’s paw liability
attaches when the biased intermediate employee’s actions are “a causal factor of the
ultimate employment action.” Staub, 131 S. Ct. at 1193. The intermediate employee’s
actions need not be the sole cause of the adverse action; “[t]he decisionmaker’s exercise
of judgment is also a proximate cause of the employment decision, but it is common for


         11
            The Staub Court recognized that it was not presented with the situation where a discriminatory
supervisor intends to cause an adverse action and a different adverse action results. Id. at 1192 n.2.
However, the Court noted that “[u]nder the traditional doctrine of proximate cause, a tortfeasor is
sometimes, but not always, liable” is such situations. Id. (citing Restatement (Second) Torts §§ 435, 435B
& cmt. a). Here, though Tullock desired a greater level of punishment, his actions were a causal factor in
the punishment that was issued. “The employer is at fault because one of its agents committed an action
based on discriminatory animus that was intended to cause, and did in fact case, an adverse employment
decision.” Id. at 1193.
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No. 10-5306            Chattman v. Toho Tenax Am.                                                 Page 17


injuries to have multiple proximate causes.” Id. at 1192 (citations omitted) (emphasis
in original).

         An employer will not be liable for its intermediate employee’s discrimination if
“the employer’s investigation results in an adverse action for reasons unrelated to the
supervisor’s original biased action.” Id. at 1193. However, if the adverse employment
action is related to the discriminatory action, the employer may be liable. Neither
independent investigation nor independent judgment on the part of the employer
provides a per se defense.12 For example, if the intermediate supervisor makes a biased
report to the ultimate decisionmaker, it may be a causal factor in the adverse action if the
independent investigation by the employer “takes it into account without determining
that the adverse action was, apart from the supervisor’s recommendation, entirely
justified.” Id. Also, if “the independent investigation relies on facts provided by the
biased supervisor,” id., then the investigation was not, in actuality, independent and the
employer is liable.

         As Toho points out, Staub’s causation analysis is not contrary to the cat’s paw
case law that already exists in this Circuit. We have previously held that an employer
is liable for an intermediate employee’s discrimination when there is proof of a “causal
nexus” between the discrimination and the adverse action, Madden, 549 F.3d at 677, or
when the intermediate employee “influences the unbiased decision-maker” to take an
adverse action, Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008).
To the extent these cases are not inconsistent with Staub, we look to them for additional
guidance.

         Chattman has demonstrated that a genuine issue of material fact exists regarding
whether Tullock’s actions were a proximate cause of his discipline. In Madden we held
that the biased supervisor’s “discrimination in what information [he] presented to senior
managers” was sufficient evidence from which a reasonable factfinder could find


         12
            To the extent our prior case law holds otherwise, it is overruled by Staub. See, e.g., Wilson v.
Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992).
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No. 10-5306           Chattman v. Toho Tenax Am.                                  Page 18


causation. 549 F.3d at 677. Chattman has presented parallel evidence. Like Madden,
Chattman alleges that Tullock knew that white employees engaged in horseplay but
never reported any of those incidents to upper management, instead reporting the only
incident on record of a black employee engaging in horseplay.

        In Ercegovich v. Goodyear Tire & Rubber Co., we held that a biased employee’s
“position [of] influence” is probative of that employee’s ability to influence the ultimate
decisionmaker. 154 F.3d 344, 355 (6th Cir. 1998). Like the biased supervisor in
Ercegovich, who was head of retail sales, Tullock’s position as Human Resources
Director doubtlessly gave him some authority over personnel decisions. Further,
Tullock was “involved in some parts of the discussion” regarding Chattman’s discipline
and non-promotion, a factor the Ercegovich Court found indicative of the intermediate
employee’s influence over the employment decisions. Id.

        Thus, we cannot say that the investigation conducted by Verbruggen and Lane
was “unrelated” to Tullock’s actions. Tullock was the Human Resources manager, and
he actively inserted himself in the decisionmaking process. He both misinformed and
selectively informed Lane and Verbruggen about the incident. A reasonable factfinder
could find Tullock’s actions were a proximate cause of the adverse decisions.

        Because Chattman has presented evidence of Tullock’s discriminatory animus
and offered sufficient proof under the Staub rule to create genuine issues of fact as to
intent and causation, this evidence will be imputed to Toho. Thus, summary judgment
was improper. The adverse employment actions alleged by Chattman and any damages
flowing therefrom are matters to be resolved by a jury.

                                  III. CONCLUSION

        We REVERSE the district court’s grant of summary judgment and REMAND
the case for trial.




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