                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0622n.06

                                           No. 08-6549                            FILED
                                                                              Sep 22, 2010
                                United States Court of Appeals          LEONARD GREEN, Clerk
                                    FOR THE SIXTH CIRCUIT


DAVID EADES,                                    )
                                                )
       Plaintiff - Appellant,                   )
                                                )    Appeal from the United States
       v.                                       )    District Court for the Middle
                                                )    District of Tennessee
BROOKDALE SENIOR LIVING, INC.,                  )
                                                )
       Defendant - Appellee.                    )


Before: BOGGS, MOORE, and GIBSON,* Circuit Judges.


JOHN R. GIBSON, Circuit Judge.

       Plaintiff David Eades appeals from an order of summary judgment entered against him on

his claims of age discrimination and retaliation arising under the Age Discrimination in Employment

Act (“ADEA”) and Title VII, along with concomitant state law claims under the Tennessee Human

Rights Act. Eades brought this action after Brookdale Senior Living, Inc. (“Brookdale”) terminated

his employment. He appeals the judgment only as to the retaliation claim, arguing that Brookdale

offered a pretextual reason for dismissing him. Because the district court granted summary judgment

where material facts concerning Brookdale’s rationale for dismissing Eades are in dispute, we

reverse.




       *
       The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
                                                   I.

        Eades began working for Brookdale’s predecessor in July 2005 as a Regional Rehab Director.

One year later, Brookdale purchased the company, and in August 2006 Eades became a Regional

Director of Start-up Operations. For the first thirty to forty-five days in that position, Eades reported

to Lee Anne Fein. He later reported to Jack Carney. Eades had a number of interactions with Fein

– both while she was his direct supervisor and continuing virtually through the end of his

employment – that he described as “harassing, degrading, intimidating, and inappropriate by nature”

and that he ultimately concluded were motivated by age discrimination. Eades was forty-one years

old when he was hired and forty-two when he was terminated.

        In addition to Eades, twenty-seven-year-old Zach Zerbonia was named as a Regional Director

of Start-up Operations. He reported to the same individuals as Eades. In reaching the conclusion

that he was a victim of age discrimination, Eades compared his own treatment to that of Zerbonia,

with whom he worked closely. Zerbonia recognized that Fein treated Eades differently than she

treated him.

        Because Eades dismissed his Title VII claims and has not appealed the judgment as to his

discrimination claims under the ADEA and the Tennessee Human Rights Act, the only remaining

claim is Brookdale’s alleged retaliation against Eades for engaging in a protected activity. Thus, we

need not set forth the facts concerning his discrimination allegations.

        Eades’s retaliation claim begins with his complaint to Brookdale’s human resources

department about Fein’s conduct. There he spoke with Dwight Tew, who told Eades that he could

contact Terry Frisby, the company’s human resources compliance officer. Eades did call Frisby and

eventually arranged a meeting where he inquired about his rights. Frisby told him that “corporate”


                                                  -2-
had talked to Fein about her people skills to no avail, and he recommended that Eades not pursue

a formal investigation. Eades next contacted Greg Richard, the company’s Chief Operating Officer,

who suggested that Eades create a written list of concerns and address them directly with Fein.

       Eades did meet with Fein. In fact, they met more than once. The first meeting was actually

at her request, and Eades does not know whether Fein knew that he had been complaining about her

or if the timing was merely coincidental. Jack Carney, the Senior Regional Director of Innovative

Senior Care and Eades’s supervisor, also attended this meeting. Fein told Eades that she was not

going to fire him, but that she wanted to discuss a specific incident with him and review his job

responsibilities. She told him that she was committed to him being a part of the regional team.

       Eades’s second meeting with Fein was at his request. It took place on October 9, 2006, and

Carney and Tew also attended. Eades voiced his concerns about specific instances of Fein’s

behavior, each of which she refuted. Fein told Carney that Eades had been given his current position

because he had not been performing well in his previous position, but that was news to Eades. Fein

also said that Eades would be put on an action plan because his performance had not improved, and

Tew told Eades he would receive the plan within seven days. Eades never received it.

       On October 18, Eades emailed a letter to Richard and the co-CEOs of Brookdale outlining

his complaints and stating that he believed he was being discriminated against because of his age.

In response, Richard and Frisby met with Eades the following day, and Richard told Eades that he

thought it would be difficult for Eades to continue working with Fein. Eades agreed with him, and

Richard said there might be other positions in the company for Eades and asked if he would be

interested in a severance package. Eades said he would be interested and asked if he was being fired.

Richard and Frisby told him he was not. Richard mentioned a six-month severance with a two-


                                                -3-
month extension if Eades had not found a replacement position, and then he told Eades to go home

early and said they would be in touch with him.

       Zerbonia called Eades later that evening and said that Fein told him that Eades was no longer

employed by Brookdale. Eades tried to access his company email and was unable to do so. Frisby

called Eades the next day to tell him that the company was offering him only a three-month

severance package because of questions about his severance from his last employer. Eades decided

not to accept the company’s offer because he believed he had suffered unfair and illegal treatment.

Frisby made no mention of other positions within the company that might be available to Eades.

       On November 21, 2006, Eades filed charges with the EEOC, alleging that he was the victim

of age discrimination and retaliation. He received a Notice of Right to Sue on June 20, 2007, and

thereafter filed this complaint alleging age discrimination and retaliation under the ADEA, Title VII,

and Tennessee state law. He later dismissed his Title VII claims, and the district court granted

Brookdale’s motion for summary judgment. Eades timely appealed.

                                                  II.

       This court reviews the district court’s grant of summary judgment de novo, viewing the facts

and inferences therefrom in the light most favorable to the nonmoving party. Holloway v. Brush,

220 F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is granted only if the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

       Eades alleges that Brookdale retaliated by firing him after he engaged in the protected activity

of complaining about discriminatory treatment he received on the basis of his age. Brookdale

conceded in the district court that Eades established a prima facie case of retaliation. On appeal,

Brookdale seeks to retract its concession and argues that firing Eades did not constitute a materially


                                                 -4-
adverse action related to his protected activity. See Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (“materially adverse” action is one “which in this context means it might well

have dissuaded a reasonable worker from making or supporting a charge of discrimination”) (internal

quotation marks and citation omitted). We will hold Brookdale to its concession. Even without it,

though, the argument fails. Terminating a person’s employment is a materially adverse action.

        Once a plaintiff establishes a prima facie case, the burden of production shifts to the

employer to articulate a legitimate, non-discriminatory explanation for the discharge. The plaintiff

then has the opportunity to demonstrate by a preponderance of the evidence that the employer’s

proffered explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142-43 (2000).

        Brookdale states clearly and unequivocally in its brief on appeal that it fired Eades for a

“legitimate, non-retaliatory reason,” namely “because he stated that he could no longer work with

Ms. Fein and requested a severance package.” Because Brookdale has articulated a legitimate, non-

discriminatory reason for terminating Eades’s employment, Eades cannot prevail without

demonstrating by a preponderance of the evidence that the proffered reason was a pretext. Id. To

establish pretext, Eades must show that Brookdale’s stated reason has no basis in fact, did not

actually motivate Brookdale to fire him, or was insufficient to warrant his firing. See Mickey v.

Zeidler Tool & Die Co., 516 F.3d 516, 526 (6th Cir. 2008).

        As Brookdale points out, Eades must point to evidence that shows not only that there is a

genuine issue of material fact as to pretext but also that there is a genuine issue as to whether the real

reason for his firing was intentional retaliation. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,

544 (6th Cir. 2008). However, Eades may rely on “the trier of fact to infer the ultimate fact of


                                                   -5-
discrimination from the falsity of the employer’s explanation,” id. at 544-45 (quoting Reeves, 530

U.S. at 147), if he presents a genuine issue of material fact as to the falsity of Brookdale’s proffered

reason.

          Proof that the defendant's explanation is unworthy of credence is simply one form of
          circumstantial evidence that is probative of intentional discrimination, and it may be
          quite persuasive. . . . Thus, a plaintiff's prima facie case, combined with sufficient
          evidence to find that the employer's asserted justification is false, may permit the trier
          of fact to conclude that the employer unlawfully discriminated.

Reeves, 530 U.S. at 147-48. Eades asserts that Brookdale has advanced a number of different

reasons for firing him from the time of his dismissal through this appeal, and that such inconsistency

raises a genuine issue of material fact as to whether the proffered reasons are true. The district court

considered Eades’s argument and acknowledged that a changing rationale can be evidence of pretext.

However, the district court concluded that Eades provided no evidence of pretext, Brookdale’s

reasons were amply supported, and “the fact that the defendant’s explanations have become more

nuanced and detailed over the course of litigation does not establish evidence of pretext.”

          Looking at the facts in the light most favorable to Eades, without resolving any factual

disputes, leads us to a different conclusion. Brookdale has changed its story many times since Eades

was fired, including advancing different reasons in its brief on appeal than it represented to the

district court.

          First, when Eades had his ultimate meeting with Richard and Frisby, Eades indicated that he

would consider a severance package. There is no evidence, however, that he said anything that

would have foreclosed the possibility of his continuing employment with Brookdale, either in his

current position or in a different capacity. While he appears to have been unresponsive to a

suggestion by Richard that other positions might be available to him, we are forbidden at the


                                                     -6-
summary judgment phase to draw the inference that Eades’s lack of response signaled his

unwillingness to consider the possibility of changing jobs. Brookdale now asserts that Eades said

he could not work with Fein and that he wanted a severance package, but this position is inconsistent

with the record testimony of the attendees of that meeting and the inferences we must draw

therefrom.

       Second, Eades filed a charge of discrimination with the EEOC approximately one month after

he was fired. In its position statement in response to the charge, Brookdale wrote:

       For the reasons shown below, [Eades] was discharged for valid non-discriminatory
       reasons, none of which had anything to do with anything other than [Eades’s]
       complete inability . . . to perform the work for which he was hired.

       ...

       Why was [Eades] terminated? The answer lies in his lack of any performance in any
       position. The offer of severance given to [him] was not and should not be considered
       anything other than an attempt to allow [him] to leave the employ of [Brookdale]
       with some dignity. [Eades] has chosen this path, and as such, [Brookdale] must
       defend itself.

       ...

       Was the reason for his termination as he suggests, or was it for other reasons? A
       close look at the actual facts above, and not mere allegations, can lead to but one
       conclusion – [Eades] was terminated for not doing his job. . . . His termination was
       not a retaliation for participating in protected activity, but based upon failure of
       [Eades] to meet the most basic element of his job according to his resume and job
       duties – to work in a professional relationship to his coworkers, subordinates, and
       vulnerable senior adults. He failed with all three classes of persons.

On appeal, Brookdale tried to minimize this response as having been prepared by a “non-

decisionmaker” (the company’s Senior Vice President for Legal Services), who “mistakenly”

informed the EEOC that Eades was terminated due to his performance. The lawyer consulted with

Fein and Richard after having reviewed Eades’s employment file and after drafting the response.


                                                -7-
Brookdale offers no evidence that either one suggested that the response was erroneous, nor does it

explain how its Senior Vice President for Legal Services made such a “mistake.”

       Third, in his deposition, Richard testified that he made the decision to terminate Eades’s

employment after he learned that Eades had received a severance payment from a former employer

and had kept the money in spite of having agreed that he would return it if he found replacement

employment.

       Fourth, in its motion for summary judgment, Brookdale advanced three reasons for

terminating Eades’s employment: 1) Eades had performance issues; 2) he could no longer work with

Fein; and 3) he declined the severance package he was offered. However, Eades denies that he was

ever informed that he had performance issues, and Brookdale offers no evidence to the contrary. In

addition, Richard testified that he asked Fein if she thought Eades should be terminated, and she said

no.

       Finally, in its brief on appeal, Brookdale explicitly denies having terminated Eades for

performance issues. In describing the district court’s ruling, Brookdale changes its characterization

of its response to the EEOC charge: “[A] non-decisionmaker [Senior Vice President for Legal

Services] advanced a legitimate reason, albeit a reason upon which Brookdale did not rely, for

Eades’[s] termination.”

       “An employer’s changing rationale for making an adverse employment decision can be

evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).

“Shifting justifications over time calls the credibility of those justifications into question. By

showing that the defendants’ justification for firing him changed over time, [plaintiff] shows a

genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was


                                                  -8-
a pretext for discrimination.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002).

The extent to which such shifting justifications are probative of pretext depends upon the

circumstances of a given case. At its root, pretext is a common-sense inquiry into whether the

employer took the adverse employment action for the stated reason or not. Chen v. Dow Chemical

Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). Hence, we look not only to whether changes in an

employer’s rationale have occurred, but to whether the circumstances could permit a rational

factfinder to conclude that these changes are indicative that the currently-proffered explanation is

false. See Reeves, 530 U.S. at 148-49 (“Whether judgment as a matter of law is appropriate in any

particular case will depend on a number of factors. Those include . . . the probative value of the

proof that the employer’s explanation is false.”).

       Brookdale’s many changes in its explanation for Eades’s termination may or may not lead

to an ultimate conclusion that it retaliated against Eades for engaging in a protected activity, but

certainly they show a genuine issue of material fact that should preclude summary judgment. See

Asmo v. Keane, Inc., 471 F.3d 588, 596 (6th Cir. 2006) (inconsistency between what employer told

plaintiff and what it asserted in lawsuits as its reasons for terminating plaintiff’s employment “is

suspicious and is evidence of pretext”). In particular, Brookdale’s unequivocal assertion to the

EEOC that Eades “was discharged for valid non-discriminatory reasons, none of which had anything

to do with anything other than [Eades’s] complete inability to perform the work for which he was

hired” simply cannot, on its terms, be reconciled with its later explanations, a fact that would permit

a rational factfinder to conclude that Brookdale’s currently-proffered rationale is pretextual.

Compare Thomas v. Union Inst., 98 F. App’x 462 (6th Cir. 2004) (employer’s shifting rationale held

to be insufficient evidence of pretext because all rationales were internally inconsistent) with Peck


                                                 -9-
v. Elyria Foundry Co., 2009 WL 2868831 (6th Cir. Sept. 8, 2009) (slip op.) (hiring decisionmaker’s

logically contradictory reasons for not hiring claimant held to be evidence of pretext).

                                                III.

       Eades argues that the temporal proximity of his complaint and discharge is evidence that

Brookdale’s proffered reason of poor performance as a reason for his discharge is pretextual. As he

points out, there is no indication in the record that Brookdale considered his performance in the one

day that passed between his complaint and his discharge. Eades acknowledges that temporal

proximity is typically regarded as evidence of a causal connection for the purpose of satisfying a

prima facie case of retaliation, see Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.

2008), and that this court views temporal proximity in the pretext analysis as indirect evidence to

support a pretext claim and rebut proffered non-discriminatory reason for an adverse employment

action, see Imwalle, 515 F.3d at 550-51; Asmo, 471 F.3d at 598.

       Because we have already concluded that material disputed facts exist that preclude summary

judgment, we need not reach this argument. We reverse the judgment of the district court.




                                               -10-
