                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 10a0025p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                  X
          Plaintiff-Appellee/Cross-Appellant, -
 MILTON HARRIS,
                                                   -
                                                   -
                                                   -
                                                       Nos. 08-6329/6330
          v.
                                                   ,
                                                    >
 METROPOLITAN GOVERNMENT OF NASHVILLE -
                                                   -
        Defendant-Appellant/Cross-Appellee, -
 AND DAVIDSON COUNTY, TENNESSEE,

                                                   -
                                                   -
                                                   -
                                                   -
 SCOTT BRUNETTE, ELIZABETH KEEL, FRANK

                        Defendants-Appellees. -
 CIRRINCIONE, MICHAEL TRIBUE,
                                                   -
                                                  N
                     Appeal from the United States District Court
                  for the Middle District of Tennessee at Nashville.
                    No. 04-00762—John T. Nixon, District Judge.
                             Argued: December 1, 2009
                        Decided and Filed: February 5, 2010
                 Before: GUY, RYAN, and GRIFFIN, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: Allison L. Bussell, METROPOLITAN DEPARTMENT OF LAW, Nashville,
Tennessee, for Appellant. Douglas B. Janney III, LAW OFFICE, Nashville, Tennessee, Mac
E. Robinson, Jr., ROBINSON & ROBINSON, Nashville, Tennessee, for Appellees.
ON BRIEF: Francis H. Young, METROPOLITAN DEPARTMENT OF LAW, Nashville,
Tennessee, for Appellant. Douglas B. Janney III, LAW OFFICE, Nashville, Tennessee, Mac
E. Robinson, Jr., ROBINSON & ROBINSON, Nashville, Tennessee, Joseph Howell
Johnston, Nashville, Tennessee, for Appellees.




                                          1
Nos. 08-6329/6330                  Harris v. Metro. Gov’t of Nashville                              Page 2
                                   and Davidson County, Tenn.


                                         _________________

                                               OPINION
                                         _________________

         RALPH B. GUY, JR., Circuit Judge. Defendant Metropolitan Government of
Nashville and Davidson County, Tennessee, appeals from the entry of judgment in the
amount of $9,258.82 in favor of plaintiff Milton Harris on his claim that the reduction to his
coaching supplement as head boys’ varsity basketball coach upon his return from leave
violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2614(a). Finding that the
district court erred in failing to consider the proffered defense, and concluding that plaintiff
was not prejudiced by the adjustment to the basketball coaching supplement, we reverse and
enter judgment in favor of defendant on the plaintiff’s FMLA claim.

         The FMLA claim was only one of many, and plaintiff cross-appeals from the district
court’s earlier decision granting summary judgment in favor of the Metropolitan Government
and the four individual defendants with respect to his claims of age discrimination and
retaliation. Agreeing with the district court, we find that no reasonable juror could conclude
that defendants’ proffered reasons were pretext either for age discrimination or for
retaliation. Accordingly, we affirm the entry of summary judgment in favor of defendants
on those claims.

                                                     I.

         Milton Harris was a veteran teacher and coach in the Metropolitan Nashville School
System. From 1993 to 2003, Harris taught health and served as the head boys’ varsity
basketball coach at McGavock High School. Each year that plaintiff coached, he received
a “coaching supplement” that was calculated based on his gross annual teaching salary.
Yearly coaching assignments were made by the principal and coaching supplements were
paid over the whole school year, beginning with the first pay period in the fall, regardless
of when the season began. In 2003, the boys’ basketball head coach supplement was twelve
                  1
percent (12%).

         1
            Plaintiff also received a six percent (6%) supplement for serving as assistant track coach, which
is not at issue in this appeal.
Nos. 08-6329/6330             Harris v. Metro. Gov’t of Nashville                     Page 3
                              and Davidson County, Tenn.


        The basketball team did not have a winning season under plaintiff’s leadership
until the 2001-2002 and 2002-2003 seasons, although plaintiff received the “Coach of
the Year Award” from the Nashville Black Coaches Association for 2002-2003.
Plaintiff’s performance evaluation from May 2003 reflected several areas in need of
improvement, consistent with concerns expressed by McGavock’s Executive Principal
Michael Tribue and incorporated into the evaluation by McGavock’s Athletic Director
Dr. Frank Cirrincione. Cirrincione commented on the evaluation, however, that “Coach
Harris is striving to improve the image of the team and coaching staff” and “is working
toward changing the negative perceptions in his program.” Despite his concerns, Tribue
assigned plaintiff to be the head boys’ varsity basketball coach for the following year
because he said plaintiff was the best person for the job at the time.

        Plaintiff reported for school in August 2003 and worked several days before
taking leave to undergo prostate cancer surgery. He returned to work in mid-October
and held a few meetings regarding the upcoming basketball season. Plaintiff worked
only five days, however, before he suffered a heart attack that kept him from returning
to work until January 12, 2004. In plaintiff’s absence, the basketball team was coached
by Marlon Simms, the assistant coach who received a six percent (6%) coaching
supplement, and Terry Watson, a volunteer coach who died suddenly during the season
and was replaced by Arcentae Broome.

        Simms visited plaintiff while he was recuperating and consulted with him about
coaching matters. During tryouts in November 2003, Simms approached Tribue for
advice because plaintiff had asked that Simms cut an athlete from the team. Tribue
testified that he believed plaintiff’s reasons had to do with a conflict with the parents and
advised Simms to do what he thought best. The athlete made the team and became one
of its top three players.

        In December 2003, after the basketball season was underway, Cirrincione talked
to Tribue about the fact that Broome was not being paid anything to coach. Principal
Tribue spoke to Scott Brunette, the Athletic Director for the Metropolitan Nashville
Nos. 08-6329/6330                   Harris v. Metro. Gov’t of Nashville                               Page 4
                                    and Davidson County, Tenn.


Schools, who, in turn, spoke to Dr. June Keel, the Assistant Superintendent for Human
Resources for the Metropolitan Nashville Schools. Keel advised them both that two
people could not receive the head coaching supplement, and that an employee was not
entitled to receive a coaching supplement while on leave. Although Keel denied it,
Brunette testified that she also opined that the FMLA did not apply to coaching
supplements. On December 17, 2003, Cirrincione made a written request that plaintiff
be “dropped” as head coach; that Simms be made head coach and receive a 12%
coaching supplement; and that Broome be made assistant coach and receive a 7%
supplement effective August 11, 2003. Brunette “okayed” the request by making a
notation on that memorandum, but plaintiff was not notified. In fact, as the district court
noted, payroll did not make this change and plaintiff’s supplement was calculated at 12%
for several more pay periods, with a deduction made against it to recoup the coaching
supplement that should not have been paid.

         Roughly half of the basketball season was over when plaintiff returned from
leave on January 12, 2004. According to Simms, plaintiff told him that there were “three
head coaches” and that there was “no reason for things to change.” When plaintiff’s
next paycheck was smaller than usual, he contacted payroll and was told that he was not
receiving the 12% supplement because he was no longer the head basketball coach.
Plaintiff was very upset and immediately talked to Tribue, who assured him that it was
a mistake and reinstated plaintiff as head coach effective as of his return on January 12,
2004. Plaintiff followed up with a letter to Tribue stating that he trusted the matter was
an error and “not an attempt to circumvent the applicable federal and state laws
governing employees on authorized sick leave.” Tribue responded in a letter dated
January 22, 2004, confirming the plaintiff’s reinstatement but advising him that,
according to human resources, the coaching supplement could not be paid for the period
that plaintiff was not coaching.2

         2
            Plaintiff incorrectly describes this letter as stating that he could not get the supplement because
he had not coached 2/3 of the games. The letter did not say this. Further, the witnesses testified that this
2/3 rule, although new to the 2003-2004 Agreement on Coaching Responsibilities, had nothing to do with
the number of contests that a coach must attend but, rather, with the number of contests that must be
scheduled for the team in order for a coach to receive a coaching supplement.
Nos. 08-6329/6330                 Harris v. Metro. Gov’t of Nashville                             Page 5
                                  and Davidson County, Tenn.


         Tribue also sent Brunette a memorandum requesting that plaintiff be reinstated,
on which Brunette made a hand-written notation of “ok” and “½ of 12%.” There was
evidence that this proration was defendant’s policy, although plaintiff disputed whether
it had been followed in every case. The “Agreement on Coaching Responsibilities for
2003-2004,” which plaintiff did not sign until he returned from leave, reiterated that
coaching assignments were made on a yearly basis and provided, among other things,
that the coach agreed that he would have to “[c]omplete the season to receive the full
supplement . . . [and would] be required to pay back any supplement not earned.”

         In this case, plaintiff’s payroll history reflected an adjustment in January 2004
to a 6% basketball coaching supplement from which deductions were made to “recoup”
overpayments made while plaintiff was on leave. The parties stipulated with respect to
damages, (1) that the full 12% coaching supplement would have been a total of
$6,812.93 for the year, and (2) that plaintiff actually received a total of $3,728.16 for the
year—or a little more than half of the full supplement amount.

         Plaintiff complained that despite his reinstatement there were several instances—
before and after he filed his EEOC charge in February 2004—in which Simms was
treated or referred to as the head coach. Plaintiff also felt he was mistreated with respect
to classroom assignment, class composition, and the cancellation of the summer
basketball league without consulting with him. While plaintiff claimed that Tribue
ignored him, Tribue testified that it was plaintiff who avoided him and refused to
acknowledge him during a track meet.3

         Tribue did not make the coaching assignments for boys’ basketball at the same
time as he made the other coaching assignments for the 2004-2005 school year. Tribue
met with Brunette and Keel to discuss naming a different head basketball coach, and
they cautioned him that plaintiff might claim retaliation. Plaintiff received an EEOC
right-to-sue letter, and filed this action on August 26, 2004. In a letter dated October 14,


         3
          The district court found that these perceived slights would not state a claim, and plaintiff does
not challenge that finding on appeal.
Nos. 08-6329/6330             Harris v. Metro. Gov’t of Nashville                     Page 6
                              and Davidson County, Tenn.


2004, Tribue notified plaintiff that he would not be reassigned as the head basketball
coach and identified several reasons for that decision. Tribue solicited applicants,
interviewed two candidates, and selected Simms to be the head boys’ varsity basketball
coach for the 2004-2005 season. Plaintiff amended his complaint to allege that he was
denied reassignment as the boys’ basketball coach because of his race, his age, and in
retaliation for engaging in protected activity. Plaintiff continued to teach until he retired
at the end of the 2005-2006 school year.

        After being filed in August 2004, this case progressed through resolution of
various dispositive motions, amendments to the complaint, and the taking of discovery.
For the reasons set forth in its opinion and order entered on April 5, 2006, the district
court granted summary judgment to defendants on all of the plaintiff’s claims, except for
the FMLA and breach of contract claims asserted against the Metropolitan Government.
Plaintiff made a motion for reconsideration with respect to the retaliation and age
discrimination claims, only, which was denied on May 26, 2006. Just prior to the entry
of that order, the case was reassigned to another district court judge for all further
proceedings.

        Trial, scheduled to begin in late June 2006, was continued without objection from
the defendant, but, instead of a new trial date, a status conference was scheduled and
mediation was attempted without success. In January 2007, a trial date was set for
September 18, 2007, and then, on September 5, 2007, trial was continued until July 15,
2008, and again until August 12, 2008. On July 31, 2008, the day before the final
pretrial conference, plaintiff sought leave to file a motion for summary judgment.
Although that motion was denied, new counsel for plaintiff convinced the district court
at the final pretrial conference to allow plaintiff to file a motion for judgment as a matter
of law. Plaintiff’s motion was filed on August 5, defendant responded on August 6, and
the motion was granted from the bench on August 7, 2008.

        The district court’s order, entered on August 21, 2008, found that defendant’s
failure to fully restore plaintiff’s compensation upon reinstatement—namely, the 12%
Nos. 08-6329/6330                 Harris v. Metro. Gov’t of Nashville                             Page 7
                                  and Davidson County, Tenn.


coaching supplement—violated the FMLA’s proscription that “any eligible employee
who takes leave under section 2612 . . . shall be entitled, on return from such leave . . .
to be restored to an equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(B). The district
court also concluded that defendant breached the 2003-2004 Education Agreement’s
provision that: “Upon returning from leave the employee shall be restored to the same
position of employment or an equivalent position with no loss of benefits, pay or other
terms of employment and consistent with TCA 49-5-705.” That is, the court found that
the contract incorporated the FMLA’s restoration rights.4

         After a hearing, damages were awarded under the FMLA, only. Specifically, the
district court awarded plaintiff $3,084.77 (the stipulated portion of the full 12% coaching
supplement that plaintiff did not receive for the 2003-2004 season), plus 10%
prejudgment interest under Tennessee law from May 2004 through entry of judgment
in August 2008. In addition, the district court also awarded liquidated damages under
the FMLA based on a finding that defendant had neither acted in good faith, nor had
reasonable grounds for believing its actions were not in violation of the FMLA.
29 U.S.C. § 2617(a)(1)(A)(iii). This appeal followed.

                                                   II.

A.       Metropolitan Government’s Appeal

         The Metropolitan Government argues that the decision granting the motion that
plaintiff styled as a motion for judgment as a matter of law was procedurally flawed and
failed to consider the substance of its defense to the FMLA claim. While a motion for
judgment as a matter of law under Fed. R. Civ. P. 50 is not a proper pretrial motion, it
is clear to us that the district court considered matters outside the pleadings and
determined that there were no genuine issues of material fact for trial with respect to

         4
           The Tennessee statute provides that upon return from leave within 12 months, an interim teacher
shall relinquish the position and the teacher shall return to the position. TENN. CODE ANN. § 49-5-705.
Tennessee statutes also address sick leave accumulation and use, including the advancement of unearned
sick leave and the use of leave donated to a sick leave bank.
Nos. 08-6329/6330             Harris v. Metro. Gov’t of Nashville                     Page 8
                              and Davidson County, Tenn.


liability. Although the order did not specify the nature of the motion, we read the
decision to be one granting summary judgment under Fed. R. Civ. P. 56(c). Summary
judgment is proper when, viewing the facts and drawing all inferences in the light most
favorable to the nonmoving party, there is no genuine issue of material fact for trial and
the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A district court’s order granting
summary judgment is reviewed de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.
1997); see also Med. Mut. of Ohio v. k. Amalia Enters. Inc., 548 F.3d 383, 389-90 (6th
Cir. 2008).

        “This court recognizes two distinct theories for recovery under the FMLA:
(1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and
(2) the ‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).”
Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). For a claim of
interference, which is the theory asserted here, the plaintiff must establish that (1) he was
an eligible employee, (2) defendant was a covered employer, (3) he was entitled to leave
under the FMLA, (4) he gave defendant notice of his intent to take leave, and (5) the
defendant denied him FMLA benefits or interfered with FMLA rights to which he was
entitled. Id. Only the last of these was disputed by defendant in this case.

        The FMLA entitles an eligible employee to take not more than 12 weeks of
unpaid leave, or substituted paid leave, for reasons that include a serious health condition
that makes the employee unable to perform the functions of his position. 29 U.S.C.
§ 2612(a) and (d). Also, the FMLA provides an employee who returns to work within
that 12-week period with a concomitant right “to be restored by the employer to the
position of employment held by the employee when the leave commenced;” or “to be
restored to an equivalent position with equivalent employment benefits, pay, and other
terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(A) and (B). While the
FMLA provides that the taking of leave may not result in the loss of any previously
accrued “employment benefit,” the FMLA does not entitle a restored employee to
“(A) the accrual of any seniority or employment benefits during any period of leave;”
Nos. 08-6329/6330            Harris v. Metro. Gov’t of Nashville                    Page 9
                             and Davidson County, Tenn.


or “(B) any right, benefit, or position of employment other than [that] to which the
employee would have been entitled had the employee not taken the leave.” 29 U.S.C.
§ 2614(a)(3).

        In granting judgment on the eve of trial, the district court in this case looked no
further than its determination that the coaching supplement was part of plaintiff’s “pay”
and that plaintiff was not restored to the full 12% coaching stipend when he returned to
work.

        The payroll records reflect a reduction in plaintiff’s basketball coaching
supplement to 6% when he was reinstated in January 2004. To find an FMLA violation
from this alone, however, elevates form over substance and ignores the defense proffered
by the Metropolitan Government that the coaching supplement was not an employment
benefit protected under the FMLA, was not included in the paid leave provided by
defendant, and was properly adjusted such that plaintiff received the compensation
required by the coaching contract consistent with Tennessee law and the FMLA.

        The district court understood defendant to rely on the unpublished decision in
Groce for the proposition that coaching supplements are not “pay” for purposes of the
FMLA. See Groce v. Metro. Gov’t, No. 3:01-1436 (M.D. Tenn. Feb. 28, 2002). The
Groce case involved another coach also employed by the Metropolitan Government who
claimed that the loss of his coaching supplement during his leave violated the FMLA’s
proscription that the taking of leave not result in the loss of any “employment benefit
accrued prior to the date on which the leave commenced.” 29 U.S.C. § 2614(a)(2).
Concluding that coaching supplements did not fit the FMLA’s definition of
“employment benefits,” the court held that removal of the supplement from the
plaintiff’s sick leave pay did not violate the FMLA. The significance of the Groce
decision to defendant’s position in this case is its holding that removal of the coaching
supplement from plaintiff’s pay while on leave would not violate the FMLA.

        Although defendant argues that the coaching supplement was not part of
plaintiff’s “pay,” it clearly was part of his compensation. More precisely, however,
Nos. 08-6329/6330            Harris v. Metro. Gov’t of Nashville                  Page 10
                             and Davidson County, Tenn.


plaintiff does not dispute that the coaching supplement was not part of plaintiff’s teacher
salary or the pay he was entitled to receive while on leave. Tennessee law recognizes
that a teacher, who also is employed as an athletic coach, “has two sets of rights, e.g.,
(1) his position as a teacher is protected by tenure, assuming that he has acquired tenure
status, and, (2) his position as a coach is protected by whatever contract he has with the
board to perform coaching duties, but not by tenure.” White v. Banks, 614 S.W.2d 331,
334 (Tenn. 1981). Further, relieving a teacher only of his coaching duties is not a
dismissal or a suspension but, rather, is the equivalent of a transfer within the system.
Id.; see also Warren v. Polk County Bd. of Educ., 613 S.W.2d 222, 225 (Tenn. 1981).
In addressing the arbitration of a grievance seeking reinstatement as a coach, the
Tennessee Supreme Court has held that coaching supplements are governed by year-to-
year contracts and are not entitled to the benefits of the collective bargaining process in
Tennessee. Lawrence County Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d
302, 318 (Tenn. 2007).

       In this case, plaintiff was under a coaching contract for the 2003-2004 school
year, which by its terms provided that the coach would have to complete the season to
receive the full supplement and would be required to pay back any supplement not
earned. Plaintiff received paid leave as a teacher, not a coach, and was not entitled to
receive the full supplement for basketball because he missed half of the season. In fact,
plaintiff does not claim that defendant was required to pay the basketball coaching
supplement while he was on leave or for the portion of the season that he missed.
Rather, plaintiff argues that, having paid the biweekly prorated supplement during
plaintiff’s leave, defendant could not reduce the amount of the supplement paid to
plaintiff upon reinstatement without violating the FMLA. That is, plaintiff argues, the
reduction in the supplement to 6% and deductions for overpayments received in the fall,
constituted a failure to restore plaintiff to the same or equivalent pay he had when he
went on FMLA leave as a matter of law.

       The district court agreed with plaintiff, emphasizing that an employer’s intent is
not relevant to an FMLA claim under the interference theory. Edgar v. JAC Prods., Inc.,
Nos. 08-6329/6330            Harris v. Metro. Gov’t of Nashville                   Page 11
                             and Davidson County, Tenn.


443 F.3d 501, 507 (6th Cir. 2006). However, this court has also recognized that “the
FMLA is not a strict-liability statute.” Id. (citing Throneberry v. McGehee Desha
County Hosp., 403 F.3d 972, 977 (8th Cir. 2005)). “[I]nterference with an employee’s
FMLA rights does not constitute a violation if the employer has a legitimate reason
unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Id.
at 508; see also Allen v. Butler County Comm’rs, 331 F. App’x 389, 393 (6th Cir. 2009)
(holding that employee on FMLA leave could be terminated for violating more stringent
requirements of employer’s sick leave policy).

        The evidence showed that, under defendant’s policies, plaintiff was not entitled
to the coaching supplement for the period when he did not coach. How that was to be
achieved, however, is less than clear. Tribue testified that he intended for plaintiff to be
reinstated to the 12% supplement. Brunette testified that he approved the request to
reinstate plaintiff as head coach, but calculated that plaintiff had missed half of the
season so could only receive the 12% supplement for the second half of the season.
Payroll records indicate that Brunette’s notation of “½ of 12%” was interpreted to mean
6% for the full year (with deductions to offset the overpayment at the 12% rate during
plaintiff’s leave).

        Had payroll calculated the amount differently upon plaintiff’s reinstatement (i.e.,
paying 12% supplement per pay period with deduction of 12% per pay period for the
amounts advanced during plaintiff’s leave), there would arguably have been no reduction
at all in the plaintiff’s rate of pay. In fact, if the coaching supplement had been paid as
a lump sum after the completion of the season, payment of “½ of 12%” would not even
arguably violate the letter of the FMLA’s restoration provision because plaintiff would
have received the additional pay after his reinstatement. Defendant’s failure to suspend
the biweekly payment of the coaching supplement during plaintiff’s leave should not
make the correction of the error after plaintiff’s return from leave a violation of the
Nos. 08-6329/6330                  Harris v. Metro. Gov’t of Nashville                        Page 12
                                   and Davidson County, Tenn.


FMLA.5 The district court erred by failing to consider the defendant’s legitimate reason
for adjusting plaintiff’s coaching supplement unrelated to the exercise of FMLA rights.

        Moreover, even if plaintiff could prove an FMLA violation under § 2615(a)(1),
the FMLA provides no relief unless the plaintiff has been prejudiced by the violation.
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003); see also 29 U.S.C.
§ 2617(a)(1)(A)(i)(I) (employer liable for compensation and benefits lost “by reason of
the violation”). A plaintiff seeking relief under the interference or entitlement theory
must show that the violation caused him harm. Edgar, 443 F.3d at 508 (citing Ragsdale
v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). In this case, defendant has
repeatedly argued that, when all was said and done, plaintiff received more than half of
the full 12% head basketball coaching supplement for the 2003-2004 season.
Irrespective of how the payments were divided, it is undisputed that plaintiff was not
prejudiced by the reduction in the coaching supplement after he returned from leave. We
find that plaintiff cannot prevail on his FMLA claim as a matter of law and, therefore,
defendant is entitled to judgment in its favor on this claim.

B.      Plaintiff’s Cross-Appeal

        Plaintiff limits his cross-appeal to the district court’s entry of summary judgment
in favor of all of the defendants with respect to his claims that he was not reassigned to
be the head basketball coach either (1) because of his age in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and the Tennessee
Human Rights Act (THRA), Tenn. Code Ann. § 4-21-401(a); or (2) in retaliation for
engaging in protected activity in violation of 42 U.S.C. § 1981. In the absence of direct
evidence of either age discrimination or retaliation, plaintiff relied on the burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05




        5
            Nor would it violate the collective bargaining agreement’s incorporation of FMLA rights.
Nos. 08-6329/6330                 Harris v. Metro. Gov’t of Nashville                          Page 13
                                  and Davidson County, Tenn.


(1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256-59
(1981).6

         In this case, the district court found that plaintiff could make the prima facie
showing for age discrimination and retaliation, but found that the evidence was not
sufficient to lead a reasonable juror to conclude that the proffered reasons were a pretext
either for unlawful discrimination or for retaliation. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149 (2000). A genuine issue of fact exists only when there
is sufficient “evidence on which the jury could reasonably find for the plaintiff.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         1.       Age Discrimination

         To establish a prima facie case of age discrimination under the ADEA, plaintiff
must show that (1) he was at least 40 years old at the time of the alleged discrimination,
(2) he was subjected to an adverse employment action, (3) he was otherwise qualified
for the position, and (4) he was rejected and someone outside the protected class was
selected. Burzynski v. Cohen, 264 F.3d 611, 621-22 (6th Cir. 2001). Once the plaintiff
makes this showing, the burden of production shifts to the defendant to articulate a
nondiscriminatory reason for its action. Id. at 622. When the defendant does so, the
burden of production shifts back to the plaintiff to show that the employer’s proffered
reason was mere pretext for intentional age discrimination. Id.; see also Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008). The plaintiff retains the
ultimate burden of proving that “age was the ‘but-for’ cause of the employer’s adverse
action.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009); Ky. Ret. Sys. v.
EEOC, 128 S. Ct. 2361, 2366 (2008).7


         6
          Although the Supreme Court has not definitively decided whether the McDonnell Douglas
framework applies to disparate treatment claims under the ADEA based on circumstantial evidence, we
are without authority to overrule this court’s published decisions absent an inconsistent decision of the
Supreme Court or an en banc decision to the contrary. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir.
2009).
         7
          The same analysis applies to such claims under the ADEA and the THRA. Bender v. Hecht’s
Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006).
Nos. 08-6329/6330                  Harris v. Metro. Gov’t of Nashville                             Page 14
                                   and Davidson County, Tenn.


         2.       Retaliation

         To make a prima facie showing of retaliation, plaintiff must show that (1) he
engaged in protected activity, (2) the activity was known to the defendant, (3) plaintiff
was subjected to materially adverse action, and (4) there was a causal connection
between the protected activity and the adverse action. Wade v. Knoxville Utils. Bd., 259
F.3d 452, 463 (6th Cir. 2001). Once this showing is made, which defendants do not
contest on appeal, the defendant must articulate a legitimate nonretaliatory reason for its
action before the burden shifts back to plaintiff to show that the proffered reason was not
its true reason but merely a pretext for retaliation. Ladd v. Grand Trunk W. R.R., 552
F.3d 495, 502 (6th Cir. 2009). The burden of persuasion remains with the plaintiff
throughout. Id.8

         3.       Pretext

         Defendants proffered legitimate nondiscriminatory and nonretaliatory reasons
for not reappointing plaintiff to coach basketball for the 2004-2005 season. A plaintiff
may demonstrate that an employer’s explanation is not credible by demonstrating that
the proffered reasons (1) had no basis in fact, (2) did not actually motivate the
employer’s action, or (3) were insufficient to motivate the employer’s action. Manzer
v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). A defendant’s
proffered reason cannot be proved to be a pretext “unless it is shown both that the reason
was false, and that discrimination [or retaliation] was the real reason.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

         Tribue’s letter notifying plaintiff of the decision in October 2004, identified
several reasons based on plaintiff’s performance during the previous season: (1) being
reported “by several parents and students for discussing other student’s team behavior
and family/home life”; (2) having instructed Simms to cut a player who “ultimately

         8
           Plaintiff states in a footnote that he asserted a claim of retaliation under the THRA that was not
separately addressed in defendants’ motions or the district court’s order granting summary judgment.
Because retaliation claims under the THRA and § 1981 are governed by the same legal framework, the
district court’s analysis and our conclusions apply to both. Wade, 259 F.3d at 464.
Nos. 08-6329/6330            Harris v. Metro. Gov’t of Nashville                 Page 15
                             and Davidson County, Tenn.


placed third in overall performance for the 2003-2004 season”; and (3) failing to “read
your opponents’ strategy and adjust accordingly during a game situation has led to
several losses.” In addition, Tribue relied on the performance evaluation from May 2003
indicating that improvement was needed in the areas of organization, communication
with coaches, public relations, game preparation, effectiveness in working with others,
discipline (fairness and consistency), communication with players, and conduct of the
team.

        Plaintiff argues that the “reports” from parents were vague and not worthy of
consideration because disgruntled parents often complain about coaches. Plaintiff
cannot complain of a lack of specificity because plaintiff’s counsel prefaced his
questions about these reports with the statement that he did not need to know the names
of the parents or students involved and then did not ask for more specificity about those
complaints. Nor has plaintiff argued that they are without basis in fact. Plaintiff also
argues that the reports did not involve more egregious conduct than other complaints that
Simms had allowed players to play with their underwear showing. It is not difficult to
understand, however, that privacy concerns make it particularly inappropriate for a
coach to talk about the behavior and home of some students with the parents of other
students.

        Next, plaintiff denies that he specifically directed Simms to cut the player in
question, explaining that he merely told Simms that any player who cannot follow the
rules of the team should be cut. While Tribue was not present for their discussion,
Tribue testified that Simms sought his advice during tryouts in November 2003 because
he was under the impression that plaintiff wanted him to cut the player in question from
the team. Tribue also explained that he believed plaintiff had asked Simms to do so
because of a perceived conflict with the student’s parents.           Even if Tribue’s
understanding was later shown to be “‘mistaken, foolish, trivial, or baseless,’” that
would not establish pretext since the evidence indicates that Tribue reasonably and
honestly believed that to be the situation. Chen v. Dow Chem. Co., 580 F.3d 394, 401
(6th Cir. 2009) (citation omitted).
Nos. 08-6329/6330            Harris v. Metro. Gov’t of Nashville                  Page 16
                             and Davidson County, Tenn.


       Plaintiff also questions whether problems with plaintiff’s performance motivated
the decision. Plaintiff offers no reason to disbelieve Tribue’s explanation that plaintiff
had demonstrated an inability to read the opponent’s strategy and adjust during the
game, which resulted in several of the team’s losses during the second half of the 2003-
2004 season. Plaintiff argues that it must not have motivated the decision because the
concerns about plaintiff’s performance identified in the May 2003 evaluation did not
prevent Tribue from assigning plaintiff to coach for the 2003-2004 season. The evidence
shows not only that the areas identified in that evaluation continued to be a problem, but
Tribue relied on specific problems with plaintiff’s performance during the 2003-2004
season. Tribue concluded that plaintiff was no longer the best person to coach the team,
and plaintiff does not come forward with evidence to show that Tribue’s reasons were
pretextual.

       During his deposition, Tribue testified that he also considered plaintiff’s public
display of disrespect during a track meet in the spring of 2004. Emphasizing that this
was not specifically mentioned in Tribue’s letter, plaintiff accuses Tribue of offering
“shifting justifications” for his decision. Although not specifically referenced in
Tribue’s letter, the reasons given included plaintiff’s problems with communication and
effectiveness in working with others. We are not persuaded that this represents the sort
of “shifting justifications” that might suggest pretext. See Cicero v. Borg-Warner Auto.,
Inc., 280 F.3d 579, 592 (6th Cir. 2002) (where employer provided one reason in
interrogatories, another in a deposition, and yet another in connection with summary
judgment). Moreover, Tribue’s reference to what he saw as a public snubbing by a
subordinate hardly supports plaintiff’s claim that the failure to reappointment him was
the result of age discrimination or retaliation.

       Finally, plaintiff testified that he was told by a guidance counselor at McGavock
that she heard from Tribue that plaintiff would not be allowed to coach the next year
whether or not he retired. When pressed, however, plaintiff conceded that the only thing
the counselor actually said was that there was a rumor that plaintiff would not be the
basketball coach the following year. Plaintiff conceded that he had no evidence that
Nos. 08-6329/6330             Harris v. Metro. Gov’t of Nashville                     Page 17
                              and Davidson County, Tenn.


Tribue was the source of the rumor. Plaintiff also claimed that he was told by another
coach that Tribue had said plaintiff would be retiring at the end of 2003-2004. The
coach in question, however, attested that he did not recall any conversation to that effect
with Tribue. When plaintiff was asked why he thought the decision was based on age
discrimination or retaliation, plaintiff responded that he could not think of any other
reason.

          Viewing the evidence and drawing all inferences in the light most favorable to
plaintiff, the district court did not err in finding that plaintiff failed to come forward with
evidence from which a rational trier of fact could find that the proffered reasons for not
reassigning him as head basketball coach for the 2004-2005 season were pretext for
unlawful age discrimination or retaliation.

          For the reasons set forth above, we AFFIRM in part, REVERSE in part, and
REMAND for entry of judgment in favor of the defendants.
