                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0159n.06

                                     Case No. 14-3215                            FILED
                                                                            Mar 02, 2015
                          UNITED STATES COURT OF APPEALS                DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


ERIC D. WHITE,                                  )
                                                )
        Plaintiff-Appellant,                    )
                                                )       ON APPEAL FROM THE UNITED
v.                                              )       STATES DISTRICT COURT FOR
                                                )       THE SOUTHERN DISTRICT OF
DUKE ENERGY-KENTUCKY, INC.,                     )       OHIO
                                                )
        Defendant-Appellee.                     )
                                                )
                                                )

BEFORE: SILER, CLAY, and GRIFFIN, Circuit Judges.

        SILER, Circuit Judge. Plaintiff Eric D. White appeals the district court’s grant of

summary judgment in favor of Defendant Duke Energy-Kentucky, Inc. (“Duke Energy”). For

the reasons stated below, we REVERSE the district court’s grant of Duke Energy’s motion for

summary judgment and REMAND for further proceedings.

                                     BACKGROUND

     I. Factual Background

        From 1990 to 2011, White was employed by Duke Energy or its predecessors at the

corporation’s East Bend Station in Kentucky. (R.19-1 Pg. ID #240, ¶ 2). For most of his time

with the company, White was a unionized employee with the formal job designation of

Instrumentation Technician. (Id. at ¶¶ 2-3). In 2009, White was promoted to the non-union
Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


position of Work Management Planner. (Id. at Pg. ID #242 ¶ 11). At that time, White was the

only African-American at the East Bend Station to hold such a position. (Id. at Pg. ID. #40 ¶ 2).

No one directly reported to White in his capacity as Work Management Planner. (Appellee’s Br.

at 2).

         On the afternoon of November 23, 2011, the day before Thanksgiving, White observed

two Caucasian employees at the East Bend Station, Duane Doyle and Daryl Duty, while they

were engaged in a verbal altercation. (R. 32 Pg. ID #630; see also R. 19 Pg. ID #236 (alluding to

the race of the employees)). White told Doyle and Duty to “break it up,” at which point the two

men separated, and White prepared to leave work for the day. (White Deposition, R. 17 Pg. ID

#127-28). On his way to clock out, White was stopped by Duty, who asked White to ensure that

Doyle did not tamper with Duty’s car. White then followed Doyle as both men clocked out of

work. (Id. at Pg. ID #128). White did not observe Doyle make any moves toward Duty’s car,

but he did ask Doyle for an explanation of the earlier incident. (Id. at Pg. ID #128-29). Doyle

explained that he had been looking through a storage area for a copper fitting when Duty had

challenged him. The two began to argue and eventually Doyle had pushed him to the ground.

(White Affidavit, R.19-1 Pg. ID #242-43).        At some point, the argument moved to the

maintenance area, where the two men were observed by White. (Id.) Doyle suggested that he

may have been injured during the confrontation. (White Deposition, R. 17 Pg. ID #129).

         Immediately after this exchange, White went back inside the facility and heard Duty’s

version of events. (Id.) Duty claimed that, after an initial exchange of words, Doyle had kicked

a garbage can at him and that the two men had wrestled with each other. Duty also claimed that

his pants had been torn during the altercation. (Id. at Pg. ID #93). White was able to see that

Duty’s pants were torn; White also saw what he interpreted to be a scratch on Duty’s leg. (Id. at



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


Pg. ID #93-94). White then left the facility and did not return until five days later, on November

29, 2011. (R. 32 Pg. ID #631).

       When he returned to work after the Thanksgiving holiday, White learned that other

people at the facility were talking about a fight between Doyle and Duty. White also heard that

the fight had been reported and was being investigated. (White Deposition, R. 17 Pg. ID #130-

31). On his first day back, White was approached by Doyle, who asked White to serve as an

intermediary between him and Duty in an effort to put their previous problems behind them and

keep the incident quiet. (White Deposition, R. 17 Pg. ID #134-35; White Affidavit, R. 19-1 Pg.

ID #423, ¶ 20).     Doyle also revealed that he was experiencing pain in his side.         (White

Deposition, R. 17 Pg. ID #135). Either shortly before or shortly after this conversation, Doyle

also made a direct overture to Duty with a handwritten note in which he stated his intention to

deny the seriousness of the incident. (Note, App. #70).

       White consented to Doyle’s request and relayed Doyle’s desire for a détente to Duty.

None of the three men made any effort to report the fight or to report any injuries sustained

during the altercation. (White Deposition, R. 17 Pg. ID #135-36). Both Doyle and Duty had

reason to fear any disciplinary action. Doyle had a Last-Chance Letter in his file for previously

falsifying company documents. (Human Resources Investigation, App. #7). Duty also had a

Last-Chance Letter as a result of an earlier fight with a coworker. (Id.)

       On December 6, 2011, Teresa Taylor, the Human Resources manager for East Bend

Station, was informed of the Doyle-Duty altercation by Bill Hyland, the Maintenance Supervisor

at the facility. (Documentation [of] Maintenance Issue, App. #5-6). Hyland had learned about

the fight from employee Mark House. (Doyle Deposition, R. 21 Pg. ID #371, 373-74). Taylor

convened a committee to investigate the incident and called White to testify on the morning of



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


December 8.     The investigation committee consisted of Taylor, Hyland, and George Dilz,

White’s direct supervisor.

       During his initial meeting with the investigation committee, White was asked, “Did you

see or do you have any information pertaining to the physical confrontation between Daryl Duty

and Duane Doyle on Wednesday, November 23, 2011?” (Fact Finding Meeting Notes #1, App.

#1). White’s response was as follows:

       I was going to the refrigerator to get food and heard yelling. Walked out and saw
       Daryl and Duane about 4 feet apart yelling at each other. I heard f-bombs and I
       heard Duane tell Daryl that he would kick his fat ass and Daryl said come on. I
       said break it up. Duane grabbed his lunch box and walked away. Daryl Duty left
       also into the ICE break room. Mark House headed into the maintenance break
       room.

(Id.). White was also asked, “…what action did you take concerning this event, if any?” White

responded, “I said break it up!” (Id.). White was subsequently asked, “Is there any information

that you know about that is important to this matter?” White’s response was a simple “no.” (Id.)

       Later that day, White informed Hyland that White did in fact have additional information

about the incident. During his second meeting with the investigative committee, White related

both versions of events that he had received from Doyle and Duty, including their claims of

injuries resulting from the encounter. (Fact Finding Meeting Notes #2, App. #2). White also

acknowledged his role as an intermediary between the two men after the holiday break. (Id.)

       The investigatory committee concluded that White had previous knowledge about the

altercation between Doyle and Duty yet failed to report the incident to management.

Accordingly, Taylor expanded the investigation to include White’s actions. In her investigative

report, Taylor determined that White had violated the General Workplace Security Policy,

Harassment Policy, and Code of Business Ethics by failing to report the act of workplace



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


violence, failing to report injuries sustained in connection with that incident, and withholding

information during his first fact-finding meeting. (Investigative Report, App. #9) Taylor also

stated that “two incidents of insubordination and one incident of falsification of company

documents substantiated the need for termination.” (Id.) Taylor has not been able to substantiate

the basis for the claims of insubordination and no documents have been found to corroborate

those claims. (R.19 Pg. ID #231). While White was accused of falsifying company documents

in 2005, he was able to rebut those accusations and was instead given a brief suspension for

violating company policies on flextime. (Id. at Pg. ID #225; App. #17-18). Nonetheless,

Taylor’s report of December 15, 2011, recommended White’s termination. (Investigative Report,

App. #9-10). White was fired the next day. (Non-Union Corrective Action Notice, App. #35).

The stated reasons for his termination were the violations of company policies mentioned in

Taylor’s investigative report. (Id.) Duty was also fired for being the aggressor in the altercation.

(Human Resources Investigation, App. #76). White was replaced by Greg Bouras, a Caucasian.

(R. 31 Pg. ID #633).

       White challenged his termination internally through Duke Energy’s Recourse Policy, but

was ultimately denied.        The Recourse Investigation Report recommended that White’s

termination be upheld, but also “recommended that management re-examine the decision

regarding Duane Doyle and that he, too, may not have fully lived up to management expectations

as it relates to reporting an injury.” (Id. at App. #79).

   II. Procedural Background

       White filed a charge with the Equal Employment Opportunity Commissions alleging race

discrimination and obtained a right to sue letter. (R. 32 Pg. ID #633). White later filed a

complaint in the Southern District of Ohio alleging that Duke Energy’s termination of his



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


employment was based on racial discrimination in violation of Title VII of the Civil Rights Act

of 1964 and the Kentucky Civil Rights Act. (Id.)

        The district court granted summary judgment to Duke Energy. While it found that White

had established a prima facie case for racial discrimination under state and federal law (Id. at Pg.

ID #639), it held that White had not created a genuine issue of material fact as to whether the

proffered legitimate reason for his termination—White’s failure to report the fight—was a mere

pretext. A key underpinning of the court’s decision was its characterization of White’s role as a

manager: “Here, Plaintiff has proffered no evidence of other management employees who were

not fired but who failed to report a fight. . . . Plaintiff was a manager, and his role in enforcing

workplace rules was key.”       (Id. at Pg. ID #641).     Because White failed to identify any

comparable managers and because the essential underlying facts of White’s own conduct were

undisputed, the district court found that no reasonable jury could conclude that White was a

victim of racial discrimination. (Id. at Pg. ID #642).

                                          DISCUSSION

        “We review a [district court’s] grant of summary judgment de novo, construing the

evidence and drawing all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX

Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011).

   I.      White’s Title VII Claim

        White’s first claim is that his termination by Duke Energy was an act of discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. To successfully

prosecute a Title VII claim, “a plaintiff must either provide direct evidence of discrimination or

establish a prima facie case, which creates an inference of discrimination based on circumstantial

evidence.” Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). A prima facie case



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


requires a plaintiff to present evidence that: (1) he was a member of a protected class; (2) that he

suffered an adverse employment action; (3) that he was professionally qualified for the position

he held at the time of the action; and (4) that he was either replaced by a person from outside the

protected class or was treated differently from similarly situated employees outside the protected

class. Clayton v. Meijer, Inc., 281 F.3d 605, 607, 610 (6th Cir. 2002).

       If the plaintiff can establish a prima facie case, the burden shifts to the defendant, who

must then offer a legitimate, nondiscriminatory reason for the adverse employment action at

issue. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the defendant makes that proffer, then

the burden shifts back to the plaintiff, who must present evidence that the proffered reason is a

mere pretext for discrimination. Id.

       The district court correctly ruled that White had established a prima facie case of racial

discrimination under Title VII. Duke Energy does not dispute that: (1) White was an African-

American and therefore a member of a protected class; (2) White suffered an adverse

employment action in the form of a termination; (3) at the time of his termination White was

qualified for his position of Work Management Planner; and (4) White’s replacement was

Caucasian.

       Duke Energy argues on appeal that it proffered the legitimate, non-discriminatory reasons

that White “failed to report the fight or that injuries had been sustained during the fight and he

failed to report what he had been told about the fight during his initial interview.” (Appellee’s

Br. at 13). In granting the motion for summary judgment, the district court characterized the

proffered reason in a slightly different way: “Plaintiff failed in his management capacity to report

a fight, in violation of a number of company rules.” White v. Duke Energy Kentucky, Inc., 1 F.



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


Supp. 3d 808, 815 (S.D. Ohio 2014). Under either formulation, Duke Energy satisfied its burden

to produce a legitimate, non-discriminatory reason for White’s termination, because it is a reason

“which, if believed by the trier of fact, would support a finding that unlawful discrimination was

not the cause of the employment action.” Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th

Cir. 2006) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).

       The main issue on appeal is whether White created a genuine issue of material fact so that

a reasonable jury could conclude Duke Energy’s proffered reason was pretextual. White argues

that Duke Energy’s proffered reason was pretextual. (Appellant’s Br. at 21). He contends that

he was treated less favorably than similarly-situated, non-protected employees. (Id.) Duke

Energy’s response is that White “cannot identify a single non-minority who was similarly

situated in all respects but treated better.” (Appellee’s Br. at 15).

       When showing that a proffered reason for a termination was pretextual, a plaintiff can

rely on “evidence that other employees, particularly employees not in the protected class, were

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

contends motivated its discharge of the plaintiff.” Madden v. Chattanooga City Wide Serv.

Dep’t, 549 F.3d 666, 676 (6th Cir. 2008). Both White and Duke Energy characterize the issue as

one of “similarly-situated employees,” as the phrase is explained and interpreted in the line of

cases stemming from Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992), and Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998). To date, this Circuit has only

explicitly applied the standard of “similarly-situated” employees to the fourth prong of the test

for a prima facie case under Title VII. See Mitchell, 964 F.2d at 582-83; Jackson v. FedEx

Corporate Servs., Inc., 518 F.3d 388, 392–97 (6th Cir. 2008). However, White explicitly argues,

and Duke Energy implicitly agrees, that the standard should be the same for the third prong of



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


the test for rebuttal of a proffered non-discriminatory reason. (See Appellant’s Br. at 23). Given

that the standard for “similarly-situated employees” seems broadly compatible with the type of

evidence described as sufficient in Madden, see 549 F.3d at 676, we are persuaded that the

standard for judging comparable employees should be consistent throughout each stage of the

McDonnell Douglas-Burdine analysis, and we will assess the sufficiency of White’s rebuttal by

determining whether his proposed comparators are “similarly situated employees” within the

meaning of the Mitchell-Ercegovich line of cases.

       In ruling that White had not identified any similarly situated employees, the district

court’s key finding was that White had not proffered any evidence of other management

employees who were not fired but failed to report a fight. As a factual matter, this finding is

essentially correct.   White has conceded that he is a management employee, and the only

management employee that White proffered as a similarly situated employee was Hyland, the

Maintenance Supervisor. But White can only argue that Hyland was somewhat dilatory in

reporting the altercation to Human Resources (see Appellant’s Br. at 9); he cannot dispute the

fact that Hyland was the individual who ultimately informed Taylor about the altercation and

indirectly triggered the internal investigation.1     Given Hyland’s role in reporting and

investigating the altercation, his conduct was not substantially similar to White’s actions.

Therefore, Hyland is not a similarly situated employee who can be used to rebut Duke Energy’s

proffered reasons for White’s termination.

       But White’s failure to proffer other management employees as similarly situated

comparators is only fatal to his claim if he is legally unable to proffer non-management

employees as similarly situated comparators.           Courts “should make an independent

       1
         At worst, it appears that Hyland waited roughly a week, until Taylor visited East Bend
Station on unrelated business, before informing her.
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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


determination as to the relevancy of a particular aspect of the plaintiff’s employment status and

that of the non-protected employee [being offered for comparison].” McMillan v. Castro, 405

F.3d 405, 414 (6th Cir. 2005) (quoting Ercegovich, 154 F.3d at 352). The plaintiff and proposed

comparator need only “be similar in all of the relevant aspects.” Id. This Circuit has clarified

that earlier language requiring a comparator to “have dealt with the same supervisor,” Mitchell,

964 F.2d at 583, “has never been read as an inflexible requirement.” McMillan, 405 F.3d at 414

(quoting Seay, 339 F.3d at 479); see also Seay, 339 F.3d at 479–80 (finding that a comparator

was similarly situated even though he worked in a different department and had a different

supervisor).

       Although he has conceded his status as a member of management, White has contested

whether his management status was relevant to his actions and the proceedings that led to his

termination. Based on the limited record before us, none of the company policies cited in

connection with the decision to terminate White appear to make meaningful distinctions between

management and other union or non-union employees. The district court claimed that as a

manager, White’s “role in enforcing workplace rules was key” (R. 32 Pg. ID #641), but this bare

assertion contains no citation to the record and Duke Energy has not pointed to any support for a

blanket obligation of rule enforcement common to all management employees.2 White has

consistently maintained that he did not supervise anyone or receive any supervisory or

management-specific training; no evidence is apparent in the record that contradicts that

assertion and some evidence supports it. (See Human Resources Investigation, App. #77). It

may well be the case that unionized employees are held to different standards of conduct than

management, even management without supervisory responsibility, and that union members

       2
          Nor was such a management-specific obligation cited in the course of White’s
termination.
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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


enjoy additional protections and opportunities for recourse in the wake of an internal

investigation. But no evidence of those distinctions is apparent in the record, and given the

paucity of the record and the district court’s analysis, the relevance of White’s status as

management appears to be a contested material fact, and “Mitchell [and its progeny] cannot

apply to cases, such as this one, in which the nonmoving party contests material facts.”

Hamilton v. General Elec. Co., 556 F.3d 428, 437–38 (6th Cir. 2009).

       Of course, if White has failed to proffer non-management employees who are otherwise

similarly situated, then any premature restriction of comparators to management employees has

no effect on the disposition of White’s claims. White has pointed to four non-management

employees as potential comparators: Don Calhoun, Norb Lankheit, Mark House, and Duane

Doyle. All four of those individuals were Caucasian union members who were not disciplined

by Duke Energy for their involvement with the altercation and subsequent investigation.

       Calhoun and Lankheit were employees who heard rumors about the altercation. Neither

of them had first-hand knowledge of the altercation or direct interactions with the parties

involved. Neither of them failed to be forthcoming with the committee, although they were

unable to contribute much information to the investigation. (See Appellee’s Br. at 17–18).

Calhoun and Lankheit’s actions are not substantially similar to those of White, and therefore they

are not similarly situated employees.

       House was a coworker of Doyle. Several days after Doyle’s altercation with Duty, House

noticed bruises on Doyle and inquired about their origin. Doyle told House about the altercation,

and House in turn reported the altercation to Hyland. White argues that if Hyland was not

dilatory in reporting the matter to Taylor, then House must have sat on his information for

roughly a week before making his report to Hyland. (See Reply Br. at 9–10). But House, like



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


Hyland, cannot be accused of a complete failure to report an act of workplace violence. House’s

actions are not substantially similar to those of White, and therefore he is not a similarly situated

employee.

        The strongest candidate for comparison among non-management employees is Duane

Doyle. Like White, Doyle arguably failed to report the altercation to management. Duke Energy

argues that Doyle fulfilled his reporting responsibility by reporting the matter to White. (See

Appellee’s Br. at 19). But a reasonable factfinder might not characterize White’s observation of

the altercation and subsequent inquiries as a “report” made by Doyle. Doyle’s abortive efforts to

enlist White in an effort to sweep the incident under the rug could also be reasonably construed

as a violation of his responsibility to report the altercation.

        Furthermore, there is also evidence to suggest that Doyle, like White, was not completely

forthcoming in his initial meeting with the investigative committee. While Doyle did provide his

version of the altercation (see Fact Finding Investigation Notes, App. #67), he did not tell the

committee about his direct and indirect efforts to hide the severity of the incident from

management and his attempts to enlist White in those efforts. Despite this omission, when

directly asked if he had any other important information about the matter, Doyle said, “No.” (Id.

at #68). Therefore, a reasonable factfinder might be able to conclude that Doyle’s behavior

during his initial committee interview was comparable to White’s behavior, particularly when

coupled with Doyle’s arguable failure to report the incident to management.

        Finally, Doyle’s employment history and past issues with dishonesty are comparable with

White’s history. While these issues were not mentioned in White’s official termination notice

(see Non-Union Corrective Action Notice, App. #35), and Taylor later said that White would

have been terminated even without the letters in his employment file (see HR Investigation



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


Interview Documentation, App. #72-73), there is evidence to suggest that the perception of

White’s past dishonesty carried weight with the Investigative Committee. (Taylor Deposition, R.

20 Pg. ID #327 (“he had a history of not telling the truth”); Dilz Deposition, R. 22 Pg. ID #440

(referring to a “trend” of falsification by White)). According to this Circuit’s “modified honest-

belief” rule, the Committee was entitled to “reasonable reliance on the particularized facts that

were before it at the time the decision was made,” see Wright v. Murray Guard, Inc., 455 F.3d

702, 708 (6th Cir. 2006), although the evidence suggests that the falsification charge against

White was downgraded to a simple case of unapproved flextime. Even so, the undisputed fact

remains that White and Doyle each had one documented charge of falsification. In terms of past

difficulties with honesty, then, a reasonable factfinder might conclude that White and Doyle

were comparable. If anything, Doyle’s history was arguably the more aggravated of the two,

since only Doyle had a Last-Chance Letter in his file. (Human Resources Investigation, App.

#7). Yet Doyle’s history did not cause him to be terminated for failing to report the altercation

or failing to fully account for his actions in the aftermath of the altercation.

        Perhaps the most significant and probative evidence that Doyle could be a similarly-

situated comparator comes from the Recourse Investigation into White’s termination. Though

HR consultant Joyce McClure ultimately sided with management in its decision to terminate

White, she specifically “recommended that management re-examine the decision regarding

Duane Doyle and that he, too, may not have fully lived up to management expectations as it

relates to reporting an injury.” (Human Resources Investigation, App. #79). A reasonable

factfinder could regard this as credible evidence that even a HR representative of Duke Energy

had concerns that White had received less favorable treatment than a similarly-situated employee

who had failed to follow corporate policies in comparable ways.



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


         Since a reasonable factfinder could conclude that White was similarly situated in all

relevant aspects to Doyle and that White was treated less favorably than Doyle, a reasonable

factfinder could conclude that Duke Energy’s proffered reason for termination was pretextual—

but only if non-management employees can be considered similarly situated for purposes of

White’s Title VII claim. Because the present record does not allow us to determine whether

White’s status as a management employee was a relevant aspect of his employment for the

purpose of limiting the pool of possible comparators, the district court erred by discounting the

possibility that Doyle was a similarly situated employee and proper comparator.

         Therefore, the grant of summary judgment on White’s Title VII claim was erroneous. On

remand, the district court should develop and expand the record on the relevant distinctions

between Duke Energy management and employees at East Bend Station, including but not

necessarily limited to: (1) whether the Duke Energy policies cited in connection with White’s

termination apply equally to management and union employees; (2) whether White possessed

training or responsibilities that would make his management status relevant to an inquiry as to

whether he could be properly compared to non-management employees; and (3) whether union

members or other non-management employees enjoyed additional protections or opportunities

for recourse in the wake of internal investigations such as the one that led to White’s termination.

   II.      White’s Kentucky Civil Rights Act Claim

         White’s second claim is that his termination was an act of racial discrimination in

violation of the Kentucky Civil Rights Act, K.R.S. §§ 344.040(1)(a) and 344.450 (“KCRA”). In

interpreting and enforcing these state provisions, the Supreme Court of Kentucky has embraced

the McDonnell Douglas-Burdine burden shifting analysis and cited Sixth Circuit precedent on

the issue of pretext. See Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495–98 (Ky. 2005).



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


Thus, we regard our analysis of White’s Title VII claim as dispositive of White’s KCRA claim

and find that the district court erred by entering summary judgment on the KCRA claim.

                                           CONCLUSION

       For the reasons stated above, we REVERSE the district court’s grant of summary

judgment for Duke Energy and REMAND for further proceedings to develop the factual record.




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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


       GRIFFIN, Circuit Judge, dissenting.

       I respectfully dissent. I would affirm the district court’s ruling that plaintiff Eric White

failed to sustain his burden of demonstrating pretext in defendant Duke Energy’s legitimate,

nondiscriminatory reason for terminating White’s employment. The undisputed facts are that

White, as a member of management, not only failed to report a fight between two employees that

resulted in one of the employees being injured, but that he also withheld information about the

altercation from interviewers during the initial stages of the investigation. Because White can

neither point to any similarly situated comparators who were treated differently for engaging in

the same behavior, nor establish pretext because he has provided no evidence of discriminatory

animus and admits to the violations of company policies that led to his termination, his

circumstantial claim alleging race discrimination under Title VII fails as a matter of law.

       Under the McDonnell Douglas burden-shifting framework, White may demonstrate

pretext by showing that Duke Energy’s proffered reason (1) has no basis in fact, (2) did not

actually motivate his discharge, or (3) was insufficient to warrant the challenged conduct.

Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 915 (6th Cir. 2013).

“Regardless of which option is used, the plaintiff retains the ultimate burden of producing

sufficient evidence from which the jury could reasonably reject [the defendant’s] explanation and

infer that the defendant[] intentionally discriminated against him.” Johnson v. Kroger Co.,

319 F.3d 858, 866 (6th Cir. 2003) (citation and internal quotation marks omitted). “[A] reason

cannot . . . be a pretext for discrimination unless it is shown both that the reason was false, and

that discrimination was the real reason.”      Seeger v. Cincinnati Bell Telephone Co., LLC,

681 F.3d 274, 285 (6th Cir. 2012) (emphases and quotation marks omitted).




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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


       Here, White asserts that Duke Energy’s proffered reason was insufficient to justify his

termination. This method usually “‘consists of evidence that other employees, particularly

employees not in the protected class, were not fired even though they engaged in substantially

identical conduct to that which the employer contends motivated its discharge of the plaintiff.’”

Johnson, 319 F.3d at 866 (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,

1084 (6th Cir. 1994)). In other words, White must establish that he was treated less favorably

than similarly-situated, non-protected employees. Manzer, 29 F.3d at 1084.

       Our court has explained that the plaintiff and a comparable employee must be similar in

all of the relevant aspects in order to be similarly situated. Johnson, 319 F.3d at 867. “In the

disciplinary context, we have held that to be found similarly situated, the plaintiff and his

proposed comparator must have engaged in acts of comparable seriousness.” Wright v. Murray

Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (emphases and citation omitted); see also

Martinez, 703 F.3d at 916–17. Relevant factors for comparison purposes include the employees’

conduct, employment standards, and whether the employees have dealt with the same supervisor.

Wright, 455 F.3d at 710.       “Differences in job title and responsibilities, experience, and

disciplinary history may establish that two employees are not similarly situated.” Rutherford v.

Britthaven, Inc., 452 F. App’x 667, 672 (6th Cir. 2011) (citation omitted). “District courts are to

make independent determination[s] as to the relevancy of a particular aspect of the plaintiff’s

employment status and that of the non-protected employee.” Khamati v. Sec’y of Dep’t of the

Treasury, 557 F. App’x 434, 439 (6th Cir. 2014) (citation and internal quotation marks omitted).

       In the present case, the district court determined that the proper comparators were other

management employees and held that “[p]laintiff has proffered no evidence of other management

employees who were not fired but who failed to report a fight.” The majority concludes that the



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


district court’s finding “is essentially correct” because “White has conceded that he is a

management employee, and the only management employee that White proffered as a similarly

situated employee was [Bill] Hyland, the Maintenance Supervisor[,]” whose “conduct was not

substantially similar to White’s actions.” Nonetheless, the majority holds that the district court’s

grant of summary judgment to Duke Energy was erroneous at this stage of the proceedings

because “the relevance of White’s status as management appears to be a contested material fact”

and White has successfully offered one non-management employee—Duane Doyle—as a

suitable comparator. I disagree.

       White’s management position is clearly relevant to the disciplinary action taken in this

case. White testified at his deposition that as a member of management, he was responsible for

understanding Duke Energy’s rules of conduct and disciplinary policies and enforcing them,

including reporting harassment, safety threats or incidents, and violence.        Significantly, he

admitted that he failed to report the altercation between Duty and Doyle and, further, that he

initially withheld information during the investigation, thus providing a legitimate,

nondiscriminatory ground for his termination.

       Moreover, White was not similarly situated to Doyle in all relevant respects. White was

an at-will management employee and reported to George Dilz. White is not comparable to

Doyle, who was a member of the union covered by a collective bargaining agreement, did not

report to the same supervisor as White, did not undergo the same management training, or share

the same management responsibilities as White.           The district court aptly observed that

“[p]laintiff was a manager, and his role in enforcing workplace rules was key.” As noted above,

White himself acknowledged that as a manager, he should have—but did not—carry out his

managerial duties to report the altercation.



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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


       The significance of management status has been recognized by our court in several cases

in which we have held that supervisory and non-supervisory personnel are not similarly situated.

See Martinez, 703 F.3d at 917 (holding that store manager was not similarly situated to its

assistant manager for purposes of assessing manager’s claim that her termination for making

inappropriate racial comments constituted reverse discrimination); Rutherford, 452 F. App’x at

672 (“[B]ecause [the non-supervisory employees] are not similarly situated to Rutherford [the

supervisor-plaintiff], the fact that they were not terminated does not demonstrate pretext.”);

Quinn-Hunt v. Bennett Enters., Inc., 211 F. App’x 452, 459 (6th Cir. 2006) (“Stickley is a

supervisory employee, and Quinn–Hunt is not. . . . This weighs against a finding that they are

similarly situated.”); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)

(“Pierce [the plaintiff] and Kennedy [the comparator] were not similarly situated. Unlike Ms.

Kennedy, Pierce was a member of management, having . . . responsibility for maintaining a

respectful, respectable, and decorous office.      Thus, defendant had reason to treat Pierce

differently than his subordinates, in requiring a larger measure of sensitivity and decorum.”).

       Likewise, Duke Energy had good reason to expect that White, as a manager, had greater

responsibilities than Doyle to enforce the code of conduct at the facility: “[White’s] role as a

manager . . . could reasonably justify holding [him] to a more stringent standard of conduct than

that applied to [Doyle].” Martinez, 703 F.3d at 917; see also Pierce, 40 F.3d at 805 (“[T]he

evidence shows that Pierce was transferred for only one reason: he admitted to participating in

actions which were not only inappropriate for him as a manager, but which violated [the

employer’s] sexual harassment policy”). Accordingly, because Doyle was not similarly situated

to White, the fact that he was not terminated does not demonstrate pretext.




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Case No. 14-3215, White v. Duke Energy-Kentucky, Inc.


       Although White argues that Duty and Doyle also failed to report their fight to

management, this is not supported by the record—they both told White, who was a manager.

The fact that they told White about the fight, that White failed to do anything about it, and that

White lied to the investigatory committee is exactly what led to White’s termination.

       In sum, because the district court properly held that White failed to demonstrate that the

reason for termination was pretextual, I would affirm the summary judgment granted in favor of

Duke Energy.




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