                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0642n.06
                                Filed: August 1, 2005

                                          No. 04-5583


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KATHY CANTRELL,

       Plaintiff-Appellant,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
NISSAN NORTH AMERICA INC.,                           MIDDLE DISTRICT OF TENNESSEE

       Defendant-Appellee.

                                              /




BEFORE:        KEITH, MERRITT, & CLAY, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff, Kathy Cantrell (“Cantrell”), appeals from the district

court’s grant of summary judgment to Defendant, Nissan North America, Inc. (“Nissan”), on

Cantrell’s claims that 1) Nissan discriminated against her by failing to reasonably accommodate her

disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.,

and 2) Nissan terminated her employment in retaliation for her filing of an charge of disability

discrimination with the Equal Employment Opportunity Commission (“EEOC”). For the reasons

that follow, we AFFIRM the district court’s grant of summary judgment to Nissan on Cantrell’s

discrimination claim, but REVERSE and REMAND her retaliation claim for trial.

                                        BACKGROUND
                                           No. 04-5583

I.      Facts

        Cantrell was employed as a technician at an automobile manufacturing plant operated by

Nissan in Smyrna, Tennessee from March 15, 1992 until December 6, 2002. Two trends in her ten-

year career at Nissan are particularly relevant here: her recurrent medical problems and Nissan’s

comprehensive accommodation of them; and her repeated disciplinary problems, which Nissan

tolerated for years until finally terminating her employment only two months after she filed an

EEOC complaint against the company.

        1.      Cantrell’s medical problems and Nissan’s attempts to accommodate them

        In 1993, Cantrell’s family physician diagnosed her with depression and being subject to

panic attacks, and prescribed medication to treat these problems. Cantrell has taken medication and

received counseling since that time. In 1994, Cantrell was hospitalized as a result of her depression

for approximately two weeks. She has not been hospitalized for depression since. Cantrell avoids

crowds, but she is able to drive, attend church regularly, and take care of household chores such as

cooking, cleaning, and laundry. Cantrell also suffers from a sleep disorder which causes her to

either sleep too much or too little. In 2002, she was permitted a one-month leave of absence in order

to participate in a sleep study.

        As will be explained in greater detail below, Cantrell had many interpersonal problems with

her co-workers, some of which became so troubling to her that in late 1998, both her personal

psychologist and a Nissan doctor imposed restrictions which barred her from working with several

individuals. Nissan accommodated these restrictions by assigning Cantrell only to work groups

where she would not be required to come into contact with those individuals.



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                                           No. 04-5583

       On June 18, 1999, Cantrell began a leave of absence due to a non-work related knee injury.

She remained on leave until December 10, 1999. When Cantrell returned, her physician placed

limitations on her ability to squat, crouch, and step up and down. Nissan identified a job rotation

within her work group that satisfied those restrictions. In October 23, 2001, Cantrell advised Nissan

that additional restrictions regarding her knee had been imposed. Nissan contends that there was

only one work group where Cantrell could work within these restrictions. Cantrell disputes this,

but agrees that she could not work in the group identified by Nissan because it included one of the

individuals with whom Cantrell was restricted from working. She was therefore put on a leave of

absence. In February 2002, Cantrell’s doctor submitted new restrictions, which Nissan determined

could be accommodated in Cantrell’s current assignment, and she returned to work.

       In April 2002, it was Cantrell’s turn, under Nissan’s seniority system, to rotate into the

“Sealer, System 2” unit. Every other technician in her group had previously rotated into Sealer.

Previously, Cantrell had avoided rotations into Sealer because of the restrictions concerning with

whom she could work. Co-workers regarded this as unfair because Sealer is perceived to be a

difficult job. On June 1, 2002, Cantrell advised company managers that Dr. Williams had approved

her to work in Sealer, and that she was willing to try to work in Sealer. Nissan medical staff

evaluated her restrictions and her willingness to try to work in Sealer, and agreed to permit the

transfer on a temporary basis. Cantrell then began working in Sealer. In an effort to provide a more

relaxed and familiar workstation, her manager, Andy Travis (“Travis”), arranged for another

technician to work in Sealer across the line from Cantrell. Travis escorted Cantrell to her assigned

job, and watched her perform the job for several minutes. He assured her that he would check on



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                                            No. 04-5583

her periodically, and asked if she was okay before leaving, to which she responded affirmatively.

However, shortly after Travis left, Cantrell began to experience another panic attack as a result of

being in close proximity fo her former work group, although she did not see any of the employees

from whom she had been restricted. Following this incident, Nissan made no further attempt to have

Cantrell work in Sealer, System 2.

       Following a disciplinary problem, Cantrell was transferred to a new work group on July 31,

2002. Cantrell’s new group, Sealer, System 1, did not include any of the technicians from whom

she was restricted, and was in an entirely different location. However, Cantrell did not report to her

new assignment, but instead went on another leave of absence. Cantrell claimed that she had begun

to experience another panic attack and could not work because two individuals from whom she was

restricted were working in the plant where her new assignment was located.

       Cantrell returned to work on November 13, 2002. On November 18, 2002, Cantrell was

asked if she would participate in Nissan’s vehicle evaluation program, where employees look over

cars as if they were at a dealership, by checking over the finish of the car, the lights, the radio, and

other functions, and then test-driving the car on a track. Cantrell agreed, but suffered another panic

attack after viewing the video shown to employees participating in the program. Cantrell was

referred to Nissan’s medical clinic and then sent home. She was released to return to work on

November 22, 2002.

       2.       Cantrell’s disciplinary problems and Nissan’s handling of them

       Cantrell’s behavior caused numerous problems and resulted in many complaints from other

employees during the course of her employment. The first such problem appears to have arisen



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                                           No. 04-5583

thirteen months after she began working at Nissan, when she was cited for inappropriate workplace

behavior for making unwelcome physical contact with a coworker on two separate occasions.

        In February 1995, co-worker Angela Link complained to the paint plant’s Human Resources

Department that Cantrell was engaging in inappropriate physical contact and intimidating her

coworkers for an extended period of time. The next month, Cantrell’s then-area manager, Russell

Rigsby, reported that Cantrell had confided to him that she planned to murder someone, and had told

him “I’m so mad I could kill someone. I could understand how someone could come into a place

like this and kill people,” and said “I’m going to beat the shit out of Angela [Link] after her baby

is born.” Nissan then placed Cantrell on medical leave until she could demonstrate that she was not

a threat.

        Nissan authorized Cantrell to return to work on June 1, 1995. In August and September

1995, Cantrell was counseled by several Nissan managers about her “finger pointing, accusations,

and intimidation.” The next July, Ron Taylor, who was Cantrell’s area manager at the time, reported

that she was making sexual comments to him at work and in phone calls to his home.

        In October 1996, Patrick Link, Angela Link’s husband, complained to Nissan that Cantrell

was threatening him and others at work, and had confronted him in the parking lot. On October 25,

1996, Jim Bowles (“Bowles”), section manager for the paint plant, recommended that Cantrell be

reassigned to another work group to give her a “fresh start.” Management agreed and moved her

to a new work group. Nissan does not normally transfer an employee to give them “a fresh start,”

but the company believed this move would be a positive development for Cantrell, especially as her

new work group was regarded as a more desirable assignment than her old one.



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                                           No. 04-5583

       In November 1996, coworker Sam Garrison reported that Cantrell intimidated, harassed, and

stared at him. In January 1997, coworker Jimmy Waisanen reported two incidents of harassing

behavior by Cantrell, one toward him and another in which Cantrell called his wife.

       On June 20, 2002, Cantrell was involved in a confrontation with a coworker. The next day,

another coworker telephoned Nissan to complain about conditions in Cantrell’s work group and

named Cantrell the “head leader” of the problems. After those incidents, an investigation into

Cantrell’s work group (consisting of interviews of each of the members of the group) disclosed

interpersonal problems. Cantrell agrees that the investigation revealed that some of the technicians

perceived Cantrell to be one of the causes of those problems, but disputes that she was, in fact, a

cause of problems in her work group. In response to a question about whether they had ever

observed intimidation by any of the technicians in the work group, seven of seventeen interviewees

named Cantrell. In response to a question about what “would most help your workgroup to become

more of a team,” eight suggested “moving” or “doing something about” Cantrell.

       On July 18, 2002, Cantrell was involved in another incident in which she became

“argumentative” with a yet another coworker. Nissan management considered terminating Cantrell,

but decided against it. Instead, on July 31, 2002, Cantrell received a written reminder regarding her

“inappropriate behavior.” The written reminder also informed her that she would be transferred to

a new work group effective immediately, and was warned that any further inappropriate behavior

at any time could result in further corrective action including termination of her employment.

Bowles testified that in his experience at Nissan, such a second “fresh start” was unprecedented.




                                                 6
                                           No. 04-5583

As noted above, Cantrell did not report to her new assignment, but instead went on another leave

of absence.

       While on leave, Cantrell filed a charge of discrimination with the EEOC. That charge was

dismissed on October 30, 2002. Cantrell returned to work on November 13, 2002. She met with

Bowles and Terry Parks (“Parks”), the Paint Operations Section manager. They informed her she

was being given a second fresh start and that any further inappropriate behavior would result in her

termination. Parks testified that his impressions of Cantrell at the meeting were that “she handled

herself well. She was a pleasant person.” During her first days back, Parks would check in with

Cantrell regularly to make sure things were going smoothly. In his view, Cantrell “seemed to be

very pleasant, very happy where she was working, did not really have problems, was adapting well.”

Her area manager told Parks that Cantrell was doing fine.

       On November 25, 2002, the week after Cantrell suffered a panic attack upon viewing the

training video for the vehicle evaluation program, Bowles prepared a memorandum recommending

Cantrell’s termination. The memo outlined Cantrell’s “history of gross misconduct.” Bowles

regarded the driving program incident as another in a long list of occasions where Cantrell appeared

to be “trying to pick her jobs,” and constituted yet more “inappropriate behavior.” Nissan

management approved the termination, and at a meeting on December 6, 2002, Cantrell was

informed that she was being terminated because of a history of gross misconduct. Cantrell

unsuccessfully appealed her termination through Nissan’s peer review process.

II.    Procedural History




                                                 7
                                            No. 04-5583

       Cantrell filed this suit in the United States District Court for the Middle District of Tennessee

on January 28, 2003. Her complaint alleged that Nissan had violated the Americans With

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., by failing to reasonably accommodate

her disability, and that Nissan terminated her employment in retaliation for her filing a charge of

disability discrimination with the Equal Employment Opportunity Commission (“EEOC”). Nissan

filed an answer on March 17, 2003, and a motion for summary judgment two days later. On April

25, 2003, Nissan filed an amended motion for summary judgment.

       On July 18, 2003, the district court denied Nissan’s motion for summary judgment, without

prejudice to refile. Nissan filed a renewed motion for summary judgment on November 11, 2003.

Cantrell filed a response on December 19, 2003. On April 28, 2004, the district court entered an

order and memorandum granting summary judgment to Nissan. The district court found that while

Cantrell had raised a genuine issue of material fact as to whether she was disabled within the

meaning of the ADA, she had not met her burden of showing that she was qualified for her position.

With respect to Cantrell’s retaliation claim, the district court found that Cantrell could not make out

a prima facie claim because she had not established a causal link between the filing of her EEOC

claim and her termination. The district court further found that even if Cantrell had established a

prima facie case of retaliation, Nissan had proffered a legitimate non-discriminatory explanation for

its decision to terminate Cantrell, and she had not shown that explanation to be pretextual.

       Cantrell filed a notice of appeal to this Court on May 13, 2004.

                                           DISCUSSION

I.     The district court did not err in granting summary judgment on Cantrell’s
       discrimination claim


                                                  8
                                            No. 04-5583

       Having reviewed the memorandum and order entered by the district court in this case on

April 29, 2004, we conclude that the district court correctly granted summary judgment to Nissan

on Cantrell’s discrimination claim under the ADA, 42 U.S.C. § 12101, et seq.. Given the district

court’s comprehensive explanation of its grant of summary judgment, no jurisprudential purpose

would be served by an exhaustive analysis of that issue here. Rather, a short discussion will suffice.

       As the district court stated, in order to establish her claim that Nissan did not reasonably

accommodate her alleged disabilities (depression and panic attacks), Cantrell needed to show that

1) she has a disability, 2) she is qualified to perform the job requirements with or without reasonable

accommodation, and 3) she was denied a reasonable accommodation. Penny v. United Parcel

Service, 128 F.3d 408, 414 (6th Cir. 1997).

       Although we find that it is a close call as to whether Cantrell succeeding in establishing that

she was disabled under the statute, we agree with the district court’s conclusion that, assuming she

was disabled, Cantrell failed to show that she was qualified for the position because of her

attendance problems and her inability to get along with her co-workers. Furthermore, we reject the

suggestion that Nissan did not reasonably accommodate Cantrell’s disability; to the contrary, until

she was terminated, Nissan made impressive efforts to accommodate her and to comply with

restrictions imposed by her doctors. The district court correctly granted summary judgment to

Nissan on Cantrell’s reasonable accommodation claim.

II.    The district court erred in granting summary judgment on Cantrell’s retaliation claim




                                                  9
                                             No. 04-5583

         We cannot agree with the district court’s determination that summary judgment was also

appropriate with respect to Cantrell’s claim that Nissan retaliated against her on the basis of her

EEOC filing, and we therefore engage in a more extended discussion of that issue here.

         1.       Standard of Review

         We review de novo a district court’s grant of summary judgment, applying the same legal

standard as the court below. Equitable Life Assur. Soc’y v. Poe, 143 F.3d 1013, 1015 (6th Cir.

1998).        Summary judgment is appropriate where "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56 (c). We must consider the factual evidence and draw all reasonable

inferences in favor of the non-moving party. Verizon North Inc. v. Strand, 367 F.3d 577, 581 (6th

Cir. 2004). A genuine issue of material fact exists when there is sufficient evidence for a trier of fact

to find for the non-moving party. Skousen v. Brighton High School, 1305 F.3d 520, 526 (6th Cir.

2002).

         2.       Analysis

         a.       Cantrell’s prima facie case

         In order to establish a prima facie case of unlawful retaliation, a plaintiff must show: 1) that

she engaged in a Title VII-protected activity; 2) that her employer knew of that activity; 3) that the

plaintiff experienced an adverse employment action; and 4) that a causal connection exists between

the protected activity and the adverse employment action. Little v. BP Exploration & Oil Co., 265




                                                   10
                                           No. 04-5583

F.3d 357, 363 (6th Cir. 2002) (citing Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th

Cir. 2000).

       There is no dispute that Cantrell engaged in a protected activity by filing a claim of

discrimination with the EEOC on September 5, 2002, that Nissan was aware of this activity, and that

Cantrell experienced an adverse employment action when she was terminated on December 6, 2002.

Therefore, the only dispute is whether Cantrell has set forth a prima facie case of retaliation in

regard to the fourth prong of the standard, which requires her to establish a causal connection

between her EEOC filing and her termination.

       A causal connection is established by the presentation of evidence “sufficient to raise the

inference that her protected activity was the likely reason for the adverse action.” EEOC v. Avery

Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (quoting Zanders v. National R.R. Passenger

Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (citations omitted). While “no one factor is dispositive

in establishing a causal connection,” we have held that evidence that a defendant employer treated

a plaintiff employee differently from identically situated employees who did not engage in protected

activity is relevant. Allen v. Michigan Dept. of Corrections, 165 F.3d 405, 413 (6th Cir. 1999)

(citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir.1987)). Applying similar logic,

we have implied that where an employer treats an employee differently after she asserts her rights

under the ADA than before she had done so, a retaliatory motive may be inferred. See Walborn v.

Erie County Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Finally, “[a]lthough temporal

proximity alone does not support an inference of retaliatory discrimination in the absence of other

evidence, closeness in time between the filing with the EEOC and the adverse employment action


                                                11
                                            No. 04-5583

is relevant and may evince the employer’s intent.” Johnson v. University of Cincinnati, 215 F.3d

561, 582 (6th Cir. 2000).

        The facts of Cantrell’s career at Nissan, recounted above, show that for years Nissan

tolerated Cantrell’s inability to get along with her co-workers, reflected in incidents in which she

made threats and unwanted physical contact with others, and that Nissan countenanced what it

perceived as Cantrell’s attempts to “pick her jobs” by invoking her restrictions to avoid certain

assignments. It was only after Cantrell’s return to work in November 2002, having filed her EEOC

charge two months earlier while on leave that Nissan determined that her “history of gross

misconduct” required her termination. Because Cantrell filed the complaint while on leave (thus

presumably making it difficult for Nissan to fire her at that time), we conclude that the appropriate

measure of temporal proximity in this case is from November 13, 2002, the date that she first

returned to work after filing the EEOC complaint, until the date of her termination on December 6,

2002.

        In our view, Cantrell has raised an inference that her termination may have been retaliatory

for the filing of her EEOC complaint. Cantrell’s engagement in the protected activity (again, as

measured by the time of her return to work following the EEOC filing) came only three weeks

before the decision to terminate her. Furthermore, the event that allegedly triggered the decision to

fire her – her failure to successfully participate in the vehicle evaluation program – was far less

serious than any of the many previous disciplinary problems Cantrell presented.1 The fact that


        1
       We are reluctant to compare Cantrell’s failure to complete the vehicle evaluation program,
which was apparently due to the fact that she suffered a debilitating panic attack, to the incidents in
which she threatened or menaced her coworkers. However, we do so because Cantrell has chosen

                                                  12
                                            No. 04-5583

Cantrell was treated so differently before and after her EEOC filing, particularly when coupled with

the close temporal proximity between the EEOC filing and her termination, suffice “to raise the

inference that her protected activity was the likely reason for the adverse action.” Avery Dennison

Corp., 104 F.3d at 861. She has therefore succeeded in making out a prima facie case of retaliation.

       b.      Nissan’s proffered legitimate, non-discriminatory reasons for firing Cantrell,
               and Cantrell’s evidence of pretext


       After a plaintiff has established a prima facie case of retaliation, the burden shifts to the

defendant “‘to articulate some legitimate, nondiscriminatory reason’ for its actions.” Gribcheck v.

Runyon, 245 F.3d 547, 551 (6th Cir. 2001) (quoting McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973)). If the defendant succeeds in doing so, the plaintiff must demonstrate “that a

reasonable jury could find by a preponderance of the evidence that the defendant’s stated reasons

are pretextual.” Id. at 552 (citing Wrenn v.Gould, 808 F.2d 493, 501 (6th Cir. 1987)).

       Although the district court reached the opposite conclusion and held that Cantrell had not

established a prima facie case, it nonetheless went on to consider whether Nissan had offered a

legitimate, non-discriminatory reason for its decision to terminate Cantrell. The district court found

that Nissan had done so. We agree, although we might frame those reasons differently than the

district court did. The district court found that the fact that Cantrell was able to complete only six

shifts after her return to work on November 13, 2002, before suffering the panic attack spurred on

by her participation in the vehicle evaluation program, provided a legitimate, non-discriminatory



not to argue that Nissan fired her because she suffered a panic attack (and to make a corollary
argument that such a firing was impermissible under the ADA), but instead argues that Nissan fired
her in retaliation for her EEOC filing.

                                                 13
                                            No. 04-5583

reason for terminating her employment. Nissan has characterized its reasons for firing Cantrell more

broadly, explaining it its brief that “[t]he record is clear that Cantrell was terminated not merely

because she failed to complete the Vehicle Evaluation Program after agreeing to do this specific

task, but because of her entire history of inappropriate conduct and the inability to do the jobs to

which she was assigned or agreed to perform.” Def. Brief at 50.

       In order to show that a proffered legitimate, non-discriminatory reason for an adverse

employment action is pretextual, a plaintiff must show “‘either (1) that the proffered reasons had no

basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they

were insufficient to motivate discharge.’” Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d

1078, 1084 (quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993))

(emphasis in original). It is clear that Cantrell cannot prove pretext either by showing that the

proffered reasons had no basis in fact or that they were insufficient to motivate discharge. She must

instead show that the proffered reasons did not actually motivate her discharge. In other words, she

must show “circumstances which tend to prove that an illegal motivation was more likely than that

offered by the defendant.” Id. (emphasis in original).

       We hold that the same circumstances which established a causal connection between

Cantrell’s protected activity and her termination also serve as sufficient evidence to meet this test.2


       2
         We note that reliance on the same evidence to establish a prima facie case and to rebut a
proffered legitimate, non-discriminatory reason for Cantrell’s termination appears at first blush to
be barred by Manzer. In Manzer, we held, in the context of a straightforward discrimination claim
under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., that in order to show that
a proffered reason did not actually motivate an adverse employment action, “the plaintiff may not
rely simply upon his prima facie evidence but must, instead, introduce additional evidence of . . .
discrimination.” Id.

                                                  14
                                             No. 04-5583

Again, Nissan showed remarkable patience for Cantrell’s inappropriate behavior and repeated

absences for over ten years, and then fired her abruptly only three weeks following her return to

work after she engaged in a protected activity. The event which precipitated Cantrell’s firing pales

in comparison to some of the far more egregious behavior that she had previously engaged in, and

for which she was not terminated. A jury could reasonably conclude that Cantrell’s failure to

complete the vehicle evaluation program was not, as Nissan would have it, the straw that broke the

camel’s back, but rather that Nissan simply seized on it as the first available excuse to fire Cantrell

after her EEOC filing. We therefore must reverse the district court’s grant of summary judgment

to Nissan on Cantrell’s retaliation claim.

        It is not lost on us that some might view our holding today as punishing Nissan for showing

too much patience with Cantrell. After all, had Nissan simply fired Cantrell in 1995, when she


        However, the rule of Manzer cannot logically be extended to a retaliation case. In Manzer,
the elements of the prima facie case were 1) membership in a protected class, 2) an adverse
employment action, 3) that plaintiff was qualified for the position, and 4) that a person outside of
the protected class replaced, or was selected over, the plaintiff. 29 F.3d at 1081. None of those
elements overlaps with a showing that the proffered reason for the adverse employment action was
not the actual reason.
        In contrast, in a retaliation claim, the prima facie case requires that the plaintiff show, among
other things, that a causal connection exists between her protected activity and the adverse
employment action. Such a showing, if sufficiently strong, also necessarily rebuts a proffered
legitimate, non-discriminatory reason for the adverse action. The overlap between the causal
connection requirement and a showing that the proffered reason for termination was not the actual
reason is implicitly recognized in our case law, which permits both to be proven by the same type
of evidence. Compare Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (“evidence
that defendant treated the plaintiff differently from similarly situated employees . . . is relevant to
causation”), and Pascual v. Anchor Advances Products, Inc., No. 96-5453, 1997 WL 397221 (6th
Cir. July 10, 1997) (“Brown could not prove that Anchor's reason for terminating her was not the
actual motivating reason for her discharge. As noted above, every employee [who engaged in the
same misconduct as Brown] was released from Anchor's employment”).


                                                   15
                                            No. 04-5583

threatened to beat up a coworker, or in 1996, when multiple coworkers reported that Cantrell was

harassing and intimidating them, Cantrell might have had a hard time alleging and proving that her

termination was wrongful. We would simply emphasize that a jury is free to conclude that it was

the accumulation of those and similar events that caused Nissan to fire Cantrell, and if it does so,

Nissan will not be liable for any wrongdoing. But if it was Cantrell’s filing of the EEOC complaint

that caused Nissan to finally lose its patience with her, then she is protected under the law, no matter

how objectionable her prior behavior in the workplace.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM in part and REVERSE and REMAND in part.




                                                  16
                                            No. 04-5583

       MERRITT, Circuit Judge, concurring in part and dissenting in part. I agree with the

Court on all points except that I do not find that the Plaintiff has demonstrated that Nissan’s stated

reasons for discharge were pretextual.        Nissan has come forward with a legitimate non-

discriminatory reason for Cantrell’s termination. In July 2002, Nissan reprimanded Cantrell for her

“inappropriate behavior” up to that point, warned her that any further inappropriate behavior could

result in termination of employment, and reassigned her to a new group. Rather than reporting to

her new assignment, Cantrell took a leave of absence. When she finally did report to her new post,

she worked there for less than two weeks before the same old problems ensued. Nissan contends

that this latest incident in light of her continuing inability to do the jobs to which she was assigned

and her “history of gross misconduct” motivated the company to discharge Cantrell. I agree with

my colleagues that the reason proffered by Nissan both had a basis in fact and was sufficient to

justify Cantrell’s discharge. Majority Opinion at 14. I disagree with the Court’s conclusion,

however, that the Plaintiff can demonstrate the existence of “circumstances which tend to prove that

an illegal motivation was more likely than that offered by the Defendant.” Id. (quoting Manzer v.

Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)) (emphasis in original).

       My colleagues simply speculate that while Nissan had a legitimate and sufficient basis to

terminate Cantrell, a jury could find they were not actually motivated by this legitimate reason.

Instead, they find that Cantrell can show that it is “more likely than not” that Nissan fired Cantrell

in response to her EEOC filing. The Court holds that a jury could find it more likely than not that

the nondiscriminatory reasons justifying termination were merely an excuse disguising the

company’s retaliation. The only stated reason for this finding is that Nissan did not terminate



                                                  17
                                            No. 04-5583

Cantrell earlier when her behavior was more egregious. Majority Opinion at 15. My fear is that the

majority’s opinion makes it nearly impossible for an employer to terminate an employee if that

employee has filed a claim with the EEOC, even if it is clear that the employer has a valid reason

to terminate the employee. An EEOC filing alone should not serve as an insurance policy against

discharge when the reasons for the employer’s actions are as strong as they are in this case.

       The most I can say is that the facts here create no more than a state of evidentiary

“equilibrium” on this point. Cantrell is unable to show that “it is more likely than not” that Nissan’s

proffered reasons are simply pretextual. Plaintiff has the burden, and she has not carried it. I would

affirm the District Court’s decision granting summary judgment on the plaintiff’s retaliation claim.




                                                  18
