                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0019n.06
                               Filed: January 9, 2006

                                                    No. 04-2370


                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT

RANDY JOOSTBERNS,

         Plaintiff-Appellant,

v.                                                               ON APPEAL FROM THE UNITED
                                                                 STATES DISTRICT COURT FOR THE
UNITED PARCEL SERVICES, INC.,                                    WESTERN DISTRICT OF MICHIGAN

         Defendant-Appellee.

                                                         /




BEFORE:           CLAY and COOK, Circuit Judges; OLIVER, District Court Judge.*

         CLAY, Circuit Judge. Plaintiff Randy Joostberns appeals an October 6, 2004 order of the

district court granting Defendant United Parcel Service, Inc.’s (“UPS”) motion for summary

judgment and dismissing Plaintiff’s claims against UPS under the Family and Medical Leave Act

(“FMLA”), the Americans with Disabilities Act (“ADA”), and Michigan’s Persons With Disabilities

Civil Rights Act (“PWDCRA”). For the reasons set forth below, we AFFIRM the order of the

district court.

                                                      I.
                                                 BACKGROUND


         *
         The Honorable Solomon Oliver, Jr., United States District Court Judge for the Northern District of Ohio, sitting
by designation.
                                            No. 04-2370

A.       Procedural History



         On July 24, 2003, Plaintiff Randy Joostberns filed a complaint in the United States District

Court for the Western District of Michigan alleging that Defendant UPS terminated him in violation

of the FMLA, ADA and Michigan PWDCRA. Plaintiff subsequently filed an amended version of

his complaint. Thereafter, on July 14, 2004 Defendant moved for summary judgment. In response,

Plaintiff submitted a brief with exhibits. The exhibits included an affidavit from UPS employee

Patrick Frost. Defendants then moved to strike the affidavit of Patrick Frost attached to Plaintiff’s

brief.     Plaintiff responded, and on September 27, 2004 the district court held a hearing on

Defendant’s motions for summary judgment and to strike the Frost Affidavit. On October 6, 2004,

the district court granted Defendant’s motion for summary judgment on all of Plaintiff’s claims and

denied Defendant’s motion to strike as moot. Plaintiff timely filed a notice of appeal on November

2, 2004.

B.       Substantive Facts

         Plaintiff Randy Joostberns began working as a truck washer for UPS in 1984 while attending

community college. After graduating, Plaintiff became a truck loader, and in 1986 he became a

truck driver. Plaintiff remained a driver until May of 2001.

         In 1999, however, Plaintiff began to experience family and personal problems that required

him to take significant amounts of leave. Plaintiff’s daughter, Jennifer, was diagnosed with

depression and anorexia nervosa. She was hospitalized in April of 1999 and thereafter remained in




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                                           No. 04-2370

outpatient care for one month. Plaintiff took time off work to participate in Jennifer’s treatment,

which included individual and family therapy.

       Jennifer’s health did not improve, and in 2001 she twice attempted suicide. Her first attempt

occurred in early 2001. Following the attempt, Jennifer was placed in a treatment center in Arizona.

Plaintiff took one week off work to visit Jennifer in Arizona. Her second attempted suicide occurred

soon after she returned from Arizona. After her second attempt, Jennifer was placed in a facility in

Wisconsin.

       Due to Jennifer’s mental health problems, Plaintiff developed severe depression. According

to Plaintiff, his depression caused him to forget assignments and become lost and confused while

driving. Consequently, Plaintiff applied for leave under the FMLA. Defendant UPS granted

Plaintiff’s leave, and Plaintiff left work at UPS for treatment in early May 2001.

       Plaintiff returned to work in early July 2001. He informed his supervisors that his

prescription medication contained a warning label advising persons not to operate heavy machinery

while medicated. His supervisors placed him at the UPS customer counter and did not reinstate him

to his former position as a driver.    According to UPS management and supervisors, Plaintiff

requested the customer counter position. Plaintiff denies making this request.

       On or before July 2, 2001, Chris Smith, a UPS employee, received a tip that Plaintiff was

shipping packages without paying for them. Smith passed this information on to Philip Siegel in

UPS’s security department. Siegel recorded notes from his conversation with Smith in his planner

and thereafter investigated the tipster’s allegations. By looking at tracking information in the UPS

system, Siegel determined that there was no record of payment for six packages shipped to



                                                 3
                                            No. 04-2370

Wisconsin. Siegel did not print out the tracking information, but copied the information into his

investigation report. Subsequently, Siegel discarded the notes in his planner pursuant to his regular

practice of discarding his notes every sixty days. He claims that UPS did not instruct him to discard

his notes on a regular basis. The UPS tracking system erases tracking information after eighteen

months.

        On July 29, 2001, at approximately 9:00 a.m., Siegel met with Plaintiff to discuss the results

of his investigation. Seigel testified that Plaintiff, Plaintiff’s supervisor Dan Langdon, and union

steward Mike Garcez attended the meeting. According to Siegel’s investigation report, Siegel asked

Plaintiff if he recognized the Wisconsin address, to which the unpaid shipments were delivered.

Plaintiff admitted that he recognized the address as that of the hospital in which his daughter was

currently residing for treatment purposes. Siegel informed Plaintiff that UPS did not have customer

counter receipts for the shipments and that the lack of receipts indicated that Plaintiff had not paid

for the shipments. Plaintiff asked if he could pay for the packages at that time. Siegel informed him

that it was too late.

        The meeting ended around 10:00 a.m. Thereafter, Plaintiff left to search for copies of

shipment receipts. He returned with two receipts, and at 3:00 p.m. met with Siegel, Langdon, and

Smith for a second time. This time, UPS employees Patrick Frost and Tom Hardy attended the

meeting with Plaintiff.    Mike Garcez did not attend. Langdon informed Plaintiff that he was

suspended pending the investigation. The next day, Langdon informed Plaintiff that he was

terminated. Mr. Langdon denies that he was involved in the decision to terminate Plaintiff.




                                                  4
                                            No. 04-2370

       After his termination, Plaintiff found a third receipt. According to UPS, however, Plaintiff’s

receipts to not prove that he paid for the shipments because they are not stamped as paid. Plaintiff

contests UPS’s claim that the receipts do not prove payment. It is undisputed, however, that Plaintiff

could not find receipts for three of the packages although he maintains that he paid for all six

shipments.

       Plaintiff contested the legality of UPS’s decision to terminate him through Union grievance

procedures. In November 2001, the Michigan Teamsters UPS Joint Grievance Committee upheld

UPS’s termination of Plaintiff.    One and a half years later, Plaintiff filed suit in federal court

alleging that his termination violated the FMLA, the ADA and the PWDCRA.

                                                 II.
                                             Discussion

A.     Standard of Review

       This Court reviews a district court’s grant of summary judgment de novo. Blackmore v.

Kalamazoo, 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper when there is no

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

Fed. R. Civ. Pro. 56 (c). The party bringing the summary judgment motion bears the initial burden

of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The moving party may satisfy its burden by offering affirmative evidence that

negates an element of the non-moving party’s claim or by pointing to an absence of evidence to

support the non-moving party’s claim. Id. If the moving party satisfies its burden, the non-moving

party must then set forth the specific facts showing that there is a genuine issue for trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 257-58 (1986).

                                                  5
                                            No. 04-2370

       In evaluating the evidence, this Court draws all reasonable inferences in favor of the non-

moving party. Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)). Additionally, this Court does not weigh the evidence or make credibility

determinations. Id. (citing Anderson, 477 U.S. at 249). The existence of a mere scintilla of evidence

in support of the non-moving party’s position, however, will be insufficient to survive summary

judgment. Anderson, 477 U.S. at 251. Rather, there must be evidence on which the jury could

reasonably find for the non-moving party. Id. at 250-51.

B.     FMLA Claim

       Plaintiff asserts that Defendant violated the FMLA when Defendant failed to reinstate

Plaintiff to the position of driver after Plaintiff returned from FMLA authorized leave, when

Defendant commenced an investigation into his shipment of packages, and when Defendant

terminated Plaintiff from employment. For the reasons set forth below, this Court affirms the

decision of the district court granting Defendant’s motion for summary judgment on all Plaintiff’s

FMLA claims.

       1.      Reinstatement

       The district court properly dismissed Plaintiff’s reinstatement claim in response to

Defendant’s motion for summary judgment because Plaintiff failed to properly plead the claim and

because the FMLA did not require Defendant to reinstate Plaintiff to the position of driver.

               a.      Failure to Adequately Plead

       Plaintiff fails to state a claim under the FMLA based upon Defendant’s failure to reinstate

Plaintiff because Plaintiff failed to plead a claim based upon reinstatement in his complaint. Federal



                                                  6
                                            No. 04-2370

Rule of Civil Procedure 8 governs pleading in federal court. The pleading standard articulated in

Rule 8 is a low standard. A plaintiff need only give the defendant “fair notice” of the plaintiff’s

claims. Fed. R. Civ. Pro. 8(a). Fair notice consists of “what the plaintiff’s claim is and the grounds

upon which it rests.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). In this case,

Plaintiff’s complaint did not once mention Defendant’s failure to reinstate Plaintiff. Thus, Plaintiff

did not give Defendant “fair notice” of his reinstatement claim.

       Plaintiff’s reliance on his allegations that Defendant violated FMLA’s “prescriptive

protections” in order to satisfy Rule 8’s pleading standard for his claim based on reinstatement must

be rejected. Plaintiff’s legal argument is based on a distinction between two types of provisions

contained in the FMLA: prescriptive and proscriptive.           According to Plaintiff, prescriptive

provisions confer substantive rights, whereas proscriptive provisions prohibit retaliation for exercise

of the prescriptive substantive rights. Plaintiff argues that because the termination was retaliatory,

and thus, “proscriptive,” Defendant was on notice that Plaintiff was alleging violations of other

“prescriptive” provisions, including failure to reinstate.

       There are several problems with this argument. First, Plaintiff’s complaint mentioned two

incidents that potentially gave rise to claims under the FMLA: (1) Plaintiff’s termination; and (2)

Defendant’s denial of medical insurance coverage for Plaintiff’s daughter’s treatment.              In

particular, improper denial of medical coverage was not alleged to be retaliatory, and thus,

potentially violated a “prescriptive” and not “proscriptive” provision. Consequently, Defendant had

no reason to suspect that the reference to “prescriptive protections” in the complaint referred to an

incident outside the complaint.



                                                  7
                                            No. 04-2370

       Second, Plaintiff’s complaint expressly states, “the above acts and omissions violated both

the prescriptive protections guaranteed to Plaintiff under the FMLA, as well as the proscriptive

provisions of the FMLA.” Plaintiff’s complaint thus makes clear that the prescriptive violations

alleged were based on the termination and denial of coverage described in the preceding paragraphs,

as opposed to a basis not explicitly addressed in the complaint.

       Third, even if neither the denial of coverage nor the termination constituted “prescriptive”

protections as opposed to “proscriptive” protections, Defendant would still not be on notice that the

reinstatement was an issue. Plaintiffs routinely make claims that defendants believe have no basis

in the law. Therefore, a defendant is not on notice that a plaintiff intends to base its claims on

incidents not mentioned in the complaint simply because a defendant believes that the legal theory

articulated in a complaint is inapplicable to the facts set forth in the complaint.

       Finally, the policy considerations underlying notice pleading support dismissal of this claim.

One purpose of notice pleading is to allow plaintiffs to sue defendants before they have all the facts

and use discovery to strengthen their claims. See Swierkiewicz, 534 U.S. at 512 (discussing the

relationship between discovery and pleading under Federal Rules). Allowing plaintiffs to develop

their claims during discovery is often necessary because the defendant may have access to

substantially more information surrounding the events in issue than the plaintiff. In this case,

however, Plaintiff knew that he was not reinstated. If Plaintiff believed this to be an issue, nothing

prevented him from mentioning it in his complaint or his amended complaint. Plaintiff’s failure to

mention the reinstatement claim prejudiced Defendant during the briefing process. Defendant failed

to address the reinstatement claim in its motion for summary judgment presumably because



                                                  8
                                               No. 04-2370

Defendant was not aware of its existence. To allow Plaintiff’s claim to stand despite this prejudice

would not do substantial justice. See Conley v. Gibson, 355 U.S. 41, 48 (1957); nor would the lack

of adequate briefing facilitate a decision on the merits. See id. (“The Federal Rules . . . accept the

principle that the purpose of pleading is to facilitate a decision on the merits.”)

               b.      Merits

       Even if Plaintiff had properly pled his reinstatement claim, this Court would reject the claim

on its merits. The FMLA does not require employers to reinstate an employee if the employee is

no longer able to perform his or her former job. 29 C.F.R. § 825.214(b). Defendant argues that

Plaintiff was medicated when he came back to work and that the medication warned against

operating heavy machinery while medicated.1 Therefore, Defendant did not have an obligation to

reinstate Plaintiff to the position of driver. Defendant’s argument finds strong support in the record,

in particular in Plaintiff’s own deposition.

       Q.      When you went back to work in July 2001, where you under, at that time,
               any work restrictions?

       A.      Just on the medication.

       Q.      Did the fact that you were on the medication provide or prevent you from
               performing your work as a driver on your bid route?

       A.      I actually went to the supervisor, which I believe, I’m not – I can’t tell you
               who it was, whether it was Rick or Jim. I believe it was Rick Smigiel and I
               just mentioned – and I eventually went to Dan Landon and told him of my


       1
         Defendant also argues that the record suggests that Plaintiff requested not to be a driver and
that Plaintiff does not recall whether or not he was reinstated to the position of driver when he
returned. Both these arguments are meritless. Plaintiff stated in his deposition that he did not
request to work at the counter and that he worked at the counter when he returned. This Court
cannot accepted Defendant’s version of contested facts on summary judgment.

                                                   9
                                             No. 04-2370

                concern that the medication I was on, said on the label, “Do not operate
                heavy machinery while under or taking this medication,” whatever the label
                says on there.

        Q.      For Zoloft?

        A.      I don’t recall.

        Q.      Did any of your treaters tell you that you couldn’t operate a truck for UPS in
                July of 2001?

        A.      I don’t recall.


(J.A. at 93.) Because Defendant produced evidence clearly demonstrating that Plaintiff was not

entitled to be reinstated under FMLA, the burden of proof on summary judgment shifted to Plaintiff

to offer evidence to the contrary. Anderson, 477 U.S. at 257-8.           Plaintiff fails to respond to

Defendant’s argument in his brief.2      Therefore, the district court’s decision to grant summary

judgment on this issue was proper.

        2.      Termination

        The district court properly dismissed Plaintiff’s FMLA claim based on termination because

Plaintiff failed to meet his burden of production under the McDonnell Douglas standard. Plaintiff

has failed to produce sufficient evidence to create a genuine issue of material fact as to whether

Defendant’s articulated reason for terminating Plaintiff was pretextual.

                a.      The FMLA & McDonnell Douglas Framework




        2
        Plaintiff does state in his deposition that he believes he was capable of driving. Plaintiff did
not discuss this in his brief at all. In any case, if Plaintiff had properly raised this issue, Defendant
would still be able to rely on the honest belief rule discussed below.

                                                   10
                                             No. 04-2370

        “The FMLA entitles an eligible employee to as many as twelve weeks of leave during any

twelve-month period if he or she has a ‘serious health condition’ that makes the employee unable

to perform the function of the position of such an employee.” Skrjanc v. Great Lakes Power Serv.

Co., 272 F.3d 309, 314 (6th Cir. 2001) (citing 29 U.S.C. § 2612(a)(1)(D)).             It also prohibits

employers from retaliating against employees for exercising the right to take FMLA authorized

leave. Id. To establish a prima facie case for retaliation under FMLA, a plaintiff must establish:

(1) that he or she availed himself of a protected right under the FMLA; (2) that he or she was

adversely affected by an employment decision; and (3) that a causal connection exists between the

exercise of the protected right and the adverse employment decision. Id.

        Where a plaintiff’s showing of the third element – causal connection – is based on indirect

evidence, courts employ the burden shifting analysis developed by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Skrjanc, 272 F.3d at 315. Indirect evidence is

evidence that requires the “factfinder to draw any inference in order to conclude that the challenged

[] action was motivated at least in part by [illegal considerations].” DiCarlo v. Potter, 358 F.3d

408, 415 (2004). Under McDonnell Douglas, once a plaintiff offers sufficient indirect evidence to

support a prima facie case, the burden of production shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the employment decision. 411 U.S. at 802-03. Indirect evidence is

sufficient to support a prima facie case if the evidence is “sufficient to raise the inference that [the]

protected activity was the likely reason for the adverse [employment] action.” Nguyen v. City of

Cleveland, 229 F.3d 559, 566 (6th Cir. 2000).




                                                   11
                                            No. 04-2370

       If the employer articulates a legitimate reason for its action, the burden of production shifts

back to the plaintiff to demonstrate that the employer’s reason is pretextual. There are three primary

methods by which plaintiffs generally show pretext: by showing that the proffered reason, (1) had

no basis in fact; (2) was insufficient motivation for the employment action; or (3) did not actually

motivate the adverse employment action. Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir.

1998); Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).

       The first method is essentially an attack on the credibility of the employer’s proffered reason.

Manzer, 29 F.3d at 1084. It consists of showing that the employer did not actually have cause to

take adverse action against the employee based on its proffered reason, and thus, that the proffered

reason is pretextual. Id. Where the employer can demonstrate an honest belief in its proffered

reason, however, the inference of pretext is not warranted. See Smith, 155 F.3d at 806. Thus, this

Circuit has adopted the “honest belief rule.” See Majewski v. Automatic Data Processing, Inc., 274

F.3d 1106, 1117 (6th Cir. 2001); Smith, 155 F.3d at 806-07. Under the honest belief rule, an

employer’s proffered reason is considered honestly held where the employer can establish it

“reasonably reli[ed] on particularized facts that were before it at the time the decision was made.”

Id.; see also Majewski, 274 F.3d at 1117. Thereafter, the burden is on the plaintiff to demonstrate

that the employer’s belief was not honestly held. Smith, 155 F.3d at 807. An employee’s bare

assertion that the employer’s proffered reason has no basis in fact is insufficient to call an

employer’s honest belief into question, and fails to create a genuine issue of material fact. Majewski,

274 F.3d at 1117.




                                                  12
                                             No. 04-2370

        Similarly, the second method is an attack on the credibility of the employer’s proffered

reason. Manzer, 29 F.3d at 1084. Unlike the first method, the second method admits that the

employer’s proffered reason has basis in fact but denies that it created sufficient cause for the

adverse employment action. Id. It “ordinarily consists of evidence that other employees . . . were

not fired even though they engaged in substantially identical conduct to that which the employer

contends motivated its discharge of the plaintiff.” Id.

        In contrast, the third method – demonstrating that the proffered reason did not actually

motivate the employer – does not attack the credibility of employer’s proffered reason. Id. Rather,

it admits that the reason could motivate the employer but argues that the illegal reason is more likely

than the proffered reason to have motivated the employer. Id. This method, however, is not identical

to a prima facie case. Id. Rather, it requires the plaintiff to submit additional evidence Id. A

plaintiff must offer evidence sufficient to allow a reasonable juror to find that the employer was

motivated by illegal reasons considering both the employer’s stated reasons and evidence the

employer offers in support of such reasons. Id. at 1083; see also Anderson, 477 U.S. 257-58 (stating

that to survive summary judgment, a party must offer sufficient evidence to allow a reasonable jury

to find in his or her favor).

                b.      Summary Judgment Improper Under McDonnell Douglas

                        i.      McDonnell Douglas Framework Applies to This Case

        In this case, Plaintiff offers only indirect evidence to support his claim of retaliation. As the

district court correctly noted, the only arguably direct evidence of retaliatory termination is

Plaintiff’s testimony regarding alleged statements of Dan Langdon. Ultimately, however, this Court



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                                           No. 04-2370

believes that Langdon’s statements are indirect evidence because they require the factfinder to make

an inference before finding that the termination was retaliatory. Langdon allegedly stated that

Plaintiff was taking too much time off work and that absences would result in negative

consequences.     Langdon, however, did not directly state that taking time off would result in

termination. Thus, the factfinder would have to infer that the negative consequences Langdon was

referring to included termination. The necessity of this inference renders the statements indirect

proof. See DiCarlo, 358 F.3d at 415 (holding that supervisor’s statement that she fired the plaintiff

for illegal reasons was direct proof and distinguishing supervisor’s statement’s from isolated

discriminatory statements of non-supervisors who were not involved in decision to terminate the

plaintiff).

        Moreover, it is not clear from the record that Langdon was responsible for Plaintiff’s

termination. See id. Thus, additional evidence of Langdon’s involvement is needed in conjunction

with Langdon’s alleged statements regarding Plaintiff’s time off to allow a factfinder to reach the

conclusion that Landgon terminated Plaintiff in retaliation for taking his FMLA leave. The only

such evidence is indirect evidence: Langdon’s participation in the meeting with Siegel. Therefore,

the McDonell Douglas framework provides the law applicable to Plaintiff’s claim.

        ii.     Plaintiff Establishes a Prima Facie Case For FMLA Retaliation

        Under the McDonnell Douglas framework, the first inquiry must be whether Plaintiff

established a prima facie case of retaliation for exercising his rights under the FMLA. 411 U.S. at

802. The district court did not decide whether Plaintiff stated a prima facie claim for relief but

instead assumed its existence for the purpose of the motion. The district court declined to decide



                                                 14
                                              No. 04-2370

the issue because it determined that the only evidence of causation was temporal proximity, and

thus, whether Plaintiff adequately demonstrated causation was a difficult question. The district

court, however, made the issue of the existence of a prima facie case more difficult than necessary

because the court incorrectly refused to consider Plaintiff’s testimony regarding Langdon’s

comments. The district court refused to consider Plaintiff’s testimony regarding Langdon’s

comments because it found that Plaintiff’s sole testimony regarding the comments was in an

affidavit filed after the motion for summary judgment. Relying on this Court’s decision in Reid v.

Sears, Roebuck & Co., 790 F.3d 453, 459-60 (6th Cir. 1985),3 the district court determined that the

affidavit could not create a genuine issue of material fact because it contradicted Plaintiff’s

deposition testimony.

        Although the district court correctly recognized that this Circuit does not consider affidavits

filed after summary judgment motions if those affidavits expressly contradict earlier deposition

testimony, see id. and Peck v. Bridgeport Mach., Inc., 237 F.3d 614, 619 (6th Cir. 2001), the district

court incorrectly applied this law to Plaintiff’s case. In this case, Plaintiff’s affidavit does not clearly

contradict his earlier deposition testimony. Plaintiff’s affidavit states:

        On several occasions before my termination, Mr. Langdon informed me that he and
        UPS management were unhappy with my taking medical and FMLA leave for my
        clinical depression, that such absences were considered by Mr. Langdon and UPS to


        3
         In Reid, this Court held that a district court properly excluded a plaintiff’s affidavit alleging
that the defendant employer had assured her she would not be laid off. Reid, 790 F.3d at 459-60.
This Court found that it contradicted the plaintiff’s earlier deposition testimony that she could not
remember her employer telling her anything other than that she could be fired for punching another
employee’s time card. Id. This Court reasoned that a non-moving party should not be able to create
non-existent issues of fact by filing affidavits after the opposing party files for summary judgment.
 Id.

                                                    15
                                            No. 04-2370

       be, “problems,” [sic] and that taking this time off would cause negative
       consequences
       and would cause me to be “in trouble.”

(J.A. at 144.) Similarly, in his deposition, Plaintiff made the following statements:

       Q:       Did you, when you returned from your disability leave in the first week of
                July of 2001, did anyone say anything negative to you about the fact that
                you’ve been on disability leave?

       A:       I guess prior you asking me [sic] if anyone said anything negative about myself or
                my daughter being ill.

       Q:       Right.

       A.       There were negative comments about how much time I had taken off.

       Q:       Who said those comments?

       A:       Dan Langdon.

       Q:       What did he say?

       A:       Just the fact that I was taking too much time off.

       Q:       And he said you would have to check into FMLA?

       A:       Yes.

(J.A. at 95.)

       Q:       Do you remember any positive or negative statements made to you by any
                managers or supervisors at UPS regarding the time you were taking off for
                your FMLA?

       A:       Yes, I remember Dan Langdon making comments about the amount of time
                that I was taking off. That I would ask for a day off or just ask him, that I
                needed to be off for an appointment, you know, and also when I took the
                initial time off, and it wasn’t – I guess, what I would call a concern, it was
                more of a – well, you’re going to have to do it through FMLA, or I just can’t
                give you the time off now, but there’s other comments made about how much
                time I was taking off.

                                                 16
                                            No. 04-2370

(J.A. at 97.) Although the statements in Plaintiff’s deposition are not as clear as the statement

contained in Plaintiff’s affidavit, the statements are not contradictory.       See King v. City of

Eastpointe, 86 Fed. Appx. 790, 793 n.1 (6th Cir. 2003 ) (unpublished) (holding that Reid was

inapplicable where the defendant “[did] mention that the parking lot is a high crime area in his

deposition, although perhaps not in as explicit terms as he does in his affidavit.”) Therefore, the

affidavit evidence should not have been excluded under Reid. Additionally, the statements in the

deposition are unquestionably relevant as Reid does not operate to exclude deposition testimony.

See Reid, 790 F.2d at 459-60. Consequently, this Court should consider Plaintiff’s allegations

regarding Langdon’s negative comments.

       Considering Plaintiff’s affidavit, Plaintiff points to sufficient evidence to demonstrate the

existence of a prima facie case of retaliation under the FMLA. Plaintiff exercised his right to take

leave for his depression under the FMLA and was terminated three weeks after he returned from his

leave. Thus, Plaintiff clearly established the first two elements of a prima facie case: (1) exercise

of a right, and (2) adverse employment decision.

       Furthermore, Plaintiff also established the third element: causal connection between the

exercise of FMLA protected right and the adverse employment decision. In particular, two pieces

of evidence support Plaintiff’s allegation of causation: temporal proximity and the negative

comments of Plaintiff’s supervisor, Langdon, as testified to by Plaintiff in his deposition. Defendant

began investigating Plaintiff around the time Plaintiff returned to work or approximately two months

after he took his FMLA leave. Additionally, Langdon made comments to Plaintiff indicating that

his absences were a problem. Because Langdon’s comments combined with the temporal proximity



                                                 17
                                           No. 04-2370

between Plaintiff’s FMLA leave and termination are “sufficient to raise the inference that [the]

protected activity was the likely reason for the adverse [employment] action,” Plaintiff has met the

burden of establishing a prima facie case. Nguyen, 229 F.3d at 566.

                       ii.     Defendant Proffered Legitimate Reason for Termination

       Next, under the McDonnell Douglas framework, Defendant must articulate a legitimate

reason for Plaintiff’s termination. 411 U.S. at 802. Here, Defendant argues that it terminated

Plaintiff pursuant to its dishonesty policy for mailing packages without paying for them. This is a

legitimate reason to terminate Plaintiff because it is legally sufficient to justify a judgment for

Defendant. Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

       Furthermore, contrary to Plaintiff’s contention, Defendant need not offer “proof” that

Plaintiff failed to pay for the packages in order for Defendant’s proffered reason for termination to

qualify as legitimate. See id. Rather, Defendant need only point its own statements in the record

articulating the reason as a basis for Plaintiff’s termination. See id. (stating that arguments of

counsel in briefs are insufficient, the reasons must be admitted into evidence). The ultimate burden

of persuasion always remains with Plaintiff. Id. Here, the Joint Appendix contains a copy of the

Dishonesty Policy, and Plaintiff admits that Defendant informed him that he was terminated

pursuant to this policy at the time of his termination. Thus, Defendant has met its burden.

                       iii.    No Genuine Issue of Material Fact Exists as to Pretext

       Finally, because Defendant offered a legitimate reason for Plaintiff’s termination, the burden

is on Plaintiff to produce evidence that demonstrates pretext. 411 U.S. at 802. Plaintiff failed to

produce evidence indicating that Defendant’s proffered reason for his termination was pretextual,



                                                 18
                                             No. 04-2370

and thus, no genuine issue of material fact exists as to whether Plaintiff’s termination was

retaliatory. See id. As discussed above, Plaintiff must offer evidence indicating either that the

proffered reason was false, that it was an insufficient reason for termination, or that it was not the

actual reason for termination. Manzer, 29 F.3d at 1084. Plaintiff does none of these things.

        First, Plaintiff does not offer evidence demonstrating that the proffered reason for his

termination was false. Plaintiff misses the point when he argues that Defendant cannot prove that

Plaintiff did not pay for the shipments. Plaintiff must offer evidence that he paid, not point to

Defendant’s inability to show that he did not pay.4 See id. Moreover, Defendant has adequately

established that it is entitled to the protection of the “honest belief rule,” under which the falsity of

Defendant’s reason for terminating plaintiff cannot establish pretext as a matter of law.5 Smith, 155

F.3d at 806-07. An employer may invoke the honest belief rule if the employer can show that it

“reasonably rel[ied] on particularized facts before it at the time the decision was made.” Id. Here,

Defendant had Siegel’s investigation report before it when it decided to terminate Plaintiff. The

report stated that Defendant had no record of payment on six shipments that Plaintiff made.

Normally, if payment is made, Defendant’s Consolidated Billing Site has a record of customer

counter receipts.   In this case it did not. Moreover, Plaintiff was unable to give a reasonable

alternative explanation for the missing receipts when confronted. Although he found three receipts

from packages the receipts were not stamped as paid, and thus, did not demonstrate that Plaintiff

        4
         Defendant’s ability or inability to prove that Plaintiff paid would, however, be relevant to
the third method of demonstrating pretext, i.e. demonstrating that the proffered reason was not the
actual reason.
        5
        The honest belief rule would not prevent Plaintiff from establishing pretext through methods
other than the falsity of the reason offered.

                                                   19
                                            No. 04-2370

actually paid for the packages. Plaintiff’s assertion that Defendant made a clerical error simply has

no support in the record. Thus, Defendant’s decision to terminate Plaintiff based on Mr. Siegel’s

report was made in reasonable reliance on particularized facts before it at the time of the decision,

and Defendant is entitled to the protection of the honest belief rule. Smith, 155 F.3d at 806-07.

       Second, Plaintiff does not produce evidence demonstrating that the proffered reason was an

insufficient basis upon which to rest his termination. Plaintiff attempts to demonstrate that the

“dishonesty” policy was an insufficient basis for his termination by pointing to Defendant’s alleged

disparate treatment of him in comparison to other employees. In particular, Plaintiff contends that:

(1) UPS did not terminate other employees for shipping packages without paying for them at the

time of shipment; and (2) UPS did not require other employees to produce receipts evidencing

payment of packages in order to avoid termination. Even assuming that Plaintiff’s contentions are

correct,6 they fail to establish that the dishonesty policy was an insufficient basis for Plaintiff’s

termination because neither contention is relevant to Plaintiff’s termination. Plaintiff was not

terminated for shipping packages and paying for them later but shipping packages without paying

at all. Similarly, Plaintiff was not terminated for failing to produce receipts but because UPS records

indicated that Plaintiff had not paid for packages. Defendant did not request receipts from other


       6
        The first contention is highly suspect. Plaintiff offers several affidavits from UPS
employees stating that it was common for employees to leave packages for shipment before or after
the customer counter register opened. Thus, these packages might be shipped prior to payment.
When employees left packages at the counter after hours, however, they generally left payment with
the packages. The payment was thus simultaneous with the shipment but simply processed later
when the counter opened. Only the Frost Affidavit states that employees sometimes left packages
without payment. Frost later repudiated and clarified his affidavit. Frost explained that management
did not pay for in house shipments, but that other employees left payment when they left their
packages.

                                                  20
                                            No. 04-2370

employees because there was no record of other employees failing to pay for packages. While there

are records of other packages not being paid for, there is no evidence linking those records to other

employees.

       Third, Plaintiff did not produce evidence demonstrating that the proffered reason was not

the actual reason for his termination. To meet his burden of creating a genuine issue of material fact

as to pretext by the third method, Plaintiff cannot simply rely on his prima facie case.7 Manzer, 29

F.3d at 1084. Instead, he must offer additional evidence of a causal connection sufficient to allow

a reasonable jury to disbelieve Defendant’s explanation for Plaintiff’s termination. Id. at 1083-84.

Plaintiff’s only additional evidence of causal connection is an alleged conflict of Langdon’s

testimony with Mr. Siegel’s testimony. In his deposition, Siegel testified that Langdon was present

at the July 29, 2001 meeting regarding Plaintiff’s packages. In contrast, Landgon testified that he

did not recall the meeting and believes that he was on vacation around the time the decision to

terminate Siegal was made. Furthermore, he expressly denied any involvement in the investigation

or decision to terminate Plaintiff. Plaintiff argues that Siegal’s testimony disproves that Langdon

was not involved in the decision to terminate him. This Court, however, disagrees. Langdon was

present at the meeting as the center supervisor. His presence does not necessarily indicate that he

personally made the decision to investigate or terminate Plaintiff. It is entirely consistent with

Defendant’s position that Langdon was a middleman. Thus, there is no “inconsistency” indicating




       7
         This is not to say that plaintiffs may never rely on their prima facie cases. Where a
plaintiff’s prima facie case is sufficiently strong to allow a reasonable jury to find that the
defendant’s proffered reason for termination is not the actual reason for termination, then the prima
facie case suffices to create a genuine issue of material fact.

                                                 21
                                            No. 04-2370

that Defendants are inherently unbelievable and Plaintiff fails to create a genuine issue of material

fact as to pretext.

        c.      Spoliation

        Next, Plaintiff attempts to survive summary judgment by urging this Court to hold that

Defendant’s spoliation gives rise to an adverse inference that satisfies Plaintiff’s burden of

production under the McDonnell Douglas test. We reject Plaintiff’s argument because the

destruction of evidence made before notice of litigation does not provide this Court with any

foundation to infer that the missing evidence was adverse to Defendant.8

        A threshold question regarding spoliation is whether to apply state law or federal law. Both

parties contend that state law governs spoliation issues. It is not entirely clear from the case law,

however, whether state or federal law should apply.9 Regardless of the decisional law, state or

federal, this panel finds that the district court did not err in disregarding Plaintiff’s allegations of

spoliation.




        8
         Defendant contends that Plaintiff waived any right to an adverse inference based on
spoliation because Plaintiff did not file a motion pursuant to Federal Rule of Civil Procedure 7 with
the district court. Defendant, however, addresses this argument in a perfunctory manner and fails
to clarify its reasoning. Therefore, we decline to entertain it on appeal. United States v. Layne, 192
F.3d 556, 566 (6th Cir. 1999).
        9
         This Court recently held “[t]he rules that apply to the spoiling of evidence and the range of
appropriate sanction are defined by state law.” 377 F.3d 624, 641 (6th Cir. 2004). Decision by
previous panels of this court, however, might be read as suggesting a contrary rule: the pre-litigation
destruction of evidence is governed by the substantive law on of the case. See United States v.
Copeland, 321 F.3d 582 (2003) Beil v. Lakewood Eng’g and Mfg., 15 F.3d 546 (6th Cir. 1994).
Because the substantive choice of law does not alter the outcome of this case, the court does not find
it necessary to decide this.

                                                  22
                                            No. 04-2370

        If this Court were to apply Beck and analyze the issue under Michigan law, the court would

uphold the district court’s decision. In Beck, the court applied Michigan law and found that

“[s]politation is the intentional destruction of evidence that is presumed to be unfavorable to the

party responsible for the destruction.” 377 F.3d at 641 The district court in the instant case found

no evidence of intentional destruction of evidence, since Siegal discarded his notes in the ordinary

course of business two years prior to Plaintiff’s suit. The district court did not abuse its discretion.

        If the court were to apply federal law, the court would reach an identical conclusion. Any

adverse inference from spoliation, while not entirely dependant on bad faith, is based on the

spoliator’s mental state. Nation-Wide Check Corp., Inc. v. Forest Hills, 692 F.2d 214, 219 (1st Cir.

1992).10 Where the spoliator has no notice of pending litigation, the destruction of evidence does

not point to consciousness of a weak case. Id. at 218. Here, both Spiegel’s notes and the tracking

records were destroyed long before the advent of federal court litigation and in the course of regular

business practice. Speigel threw out his notes every 60 days, and the tracking records are destroyed

every 18 months. Thus, at the latest, Spiegel destroyed his notes in the fall of 2001, and the tracking

records were destroyed in early 2003. Plaintiff did not initiate this lawsuit until July 2003.

Consequently, UPS was not on notice that Plaintiff would need any evidence, or that the evidence

could be used against it, until several months after it destroyed its records. Because UPS could not




        10
          In spoliation claims based on federal law, this court has applied the Federal Rules of
Evidence to determine the admissibility of any inferences to be drawn from such evidence. See
Copeland, 321 F.3d at 597-99. Nation-Wide Check Corp., Inc. is an example of a civil case in which
the First Circuit applied the Federal Rules of Evidence to the issue of what inferences may be drawn
from spoliation evidence.

                                                  23
                                            No. 04-2370

have known that the evidence would potentially be used against it, there is no basis from which this

Court can infer that the records were adverse to UPS.

       Plaintiff’s argument that UPS was on notice of Plaintiff’s potential use of the destroyed

records because of the Union grievance proceeding in November 2001 must be rejected. The

evidence available indicates that UPS’s tracking records pertaining to Plaintiff’s shipments were not

destroyed until after the Union proceedings ended. Thus, theoretically, the records were available

to Plaintiff for use during the proceedings. Because Plaintiff does not allege that Defendant

prevented Plaintiff from accessing the records for the Union proceedings, there is no basis from

which this Court can infer that Defendant did not want Plaintiff to use the records, and thus, that the

records were adverse to Plaintiff.

        Although Mr. Siegel’s notes were probably destroyed before the Union proceedings, the

district court’s denial of an adverse inference on this basis is moot inasmuch as the inference alone

is insufficient to meet Plaintiff’s burden of production. As noted above the strength to be accorded

an inference depends on the circumstances of the case, in particular the extent to which spoliation

indicates consciousness of a weak case. Nation-Wide Check, 692 F.2d at 219. Although Mr.

Spiegel’s intentional destruction of evidence could indicate that he was believed his investigation

notes would be detrimental to his employer’s case, in light of other evidence in this case discussed

infra, an inference based on spoliation of his investigation notes would not allow a rational

factfinder to conclude that Defendant’s reason for terminating Plaintiff was pretextual. Defendant’s

business records indicate that Plaintiff failed to pay for several shipments. Plaintiff is unable to

show that the records were inaccurate. The investigation notes were very unlikely to contain



                                                  24
                                            No. 04-2370

information that contradicted Defendant’s business records because Mr. Siegal was an investigator

and his work did not include recording payments. Rather, he collected information from other

departments. Therefore, even if an adverse inference was warranted it could not satisfy Plaintiff’s

burden of production and the issue is moot.

               d. The Frost Affidavit

       In light of Plaintiff’s failure to meet his burden of production even with the Frost Affidavit,

Defendant’s motion to strike is moot. The Frost affidavit states that employees shipped packages

and paid for them later. Plaintiff presumably offered it to the district court to support his attempt

to rebut Defendant’s proffered reason for termination, dishonesty, by showing that other employees

shipped packages without paying for them at the time of shipment without being terminated. As the

district court explained, however, “the key relevant aspect relating to whether [Plaintiff] was treated

differently than other similarly situated employees is shipping packages without ever paying for

them. Frost’s affidavit doesn’t help [Plaintiff] on this point, because Frost does not state that this

ever happened. Therefore, the Court may simply disregard Frost’s affidavit without striking it.”

(J.A. at 19.) This Court agrees with the district court’s reasoning, and therefore, recommends that

this Court decline to rule on Defendant’s motion to strike the Frost affidavit.

C.     ADA and PWDCRA Claims

       Like Plaintiff’s FMLA claims, Plaintiff’s ADA and PWDCRA claims must also fail because

Plaintiff fails to produce evidence sufficient to create a genuine issue of material fact as to whether

Defendant’s articulated reason for terminating Plaintiff was pretextual.




                                                  25
                                             No. 04-2370

        The ADA prohibits employers from discriminating against qualified individuals with

disabilities. “A prima facie case of disability discrimination requires the plaintiff to prove that: (1)

he is an individual with a disability; (2) he is otherwise qualified to perform the job requirements,

with or without reasonable accommodations; and (3) he was discharged solely by reason of his

handicap.” Williams v. London Util. Comm’n, 375 F.3d 474 (6th Cir. 2004) (quotation and citation

omitted). As with FMLA retaliation claims, courts apply the McDonnell Douglas burden shifting

test. Martin v. Barnesville Exempted Village Sch., 209 F.3d 931, 934 (6th Cir. 2000). Courts

interpret the PWDRCA in accordance with the ADA. Cassidy v. Detroit Edison, 138 F.3d 629, 634

(6th Cir. 1998). Thus, the resolution of a plaintiff’s ADA claims will generally resolve the

plaintiff’s PWDRCA claims.

        Plaintiff’s disability claims are even weaker than his FMLA retaliation claims. Plaintiff’s

sole evidence of discrimination on account of his depression, or perceptions of his depression, is

temporal proximity. While, as noted in the previous section, Langdon made negative comments

regarding Plaintiff’s absences, Plaintiff did not allege that Langdon made negative comments about

his depression. In light of Defendant’s proffered reason for Plaintiff’s discharge, it is very clear that

temporal proximity alone cannot create a genuine issue of material fact as to whether Defendant’s

proffered reason for termination was pretext, and that the actual motivation was disability

discrimination. See Nguyen, 229 F.3d 559 (stating that temporal proximity sometimes insufficient

for a prima facie case).

                                               III.
                                           CONCLUSION




                                                   26
                                         No. 04-2370

       For the foregoing reasons, we AFFIRM the order of the district court granting Defendant’s

motion for summary judgment and dismissing Plaintiff’s claims.




                                              27
