                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0877n.06

                                           No. 13-5010

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                    FILED
MARIE ELAINE REYNOLDS, THEODORE                  )                             Oct 08, 2013
HARRIS, III, and other employees similarly       )                        DEBORAH S. HUNT, Clerk
situated,                                        )
                                                 )
       Plaintiffs-Appellants,                    )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
v.                                               )   WESTERN DISTRICT OF TENNESSEE
                                                 )
FEDERAL EXPRESS CORPORATION, dba                 )
Fedex Express,                                   )
                                                 )
       Defendant-Appellee.                       )



       Before: DAUGHTREY, COOK, and WHITE, Circuit Judges.


       COOK, Circuit Judge. Theodore Harris and Elaine Reynolds appeal the grant of summary

judgment to the Federal Express Corporation on racial discrimination and retaliation claims. Harris

also appeals the grant of summary judgment to FedEx on a hostile-work-environment claim. For

the following reasons, we affirm.


                                                I.


       Until defendant FedEx terminated their employment in 2008, plaintiffs Harris and Reynolds

worked in a group that coordinated the maintenance of FedEx’s Airbus aircrafts. The parties dispute

the facts surrounding the firing, but because the district court granted summary judgment to FedEx,
No. 13-5010
Reynolds v. Fed. Express Corp.


we describe the facts in the light most favorable to the plaintiffs. See CareToLive v. FDA, 631 F.3d

336, 340 (6th Cir. 2011).


       A few months before FedEx terminated the plaintiffs’ employment, Harris, a black male, met

with his supervisor, Karl Schafer, and a coworker, Roger Nallick, to discuss alleged harassment from

Nallick. Harris had heard from a coworker that Nallick “did not like black people working for

FedEx,” and Harris told Schafer that Nallick “was racially harassing him” by calling him (either

directly or through coworker) a “scab,” “piece of shit scab,” or “scab motherfucker.” “Scab” refers

to someone who goes to work despite a workers’ strike     and indeed, Harris had crossed a picket line

while he and Nallick worked for a previous employer. During the meeting, Schafer told Nallick that

FedEx does not tolerate discrimination but advised Harris to “let it go.” A week later, Nallick called

Harris a “scab nigger” at work. Shortly afterward, Reynolds, a Caucasian, confronted Nallick about

his behavior and told him that he and Harris should meet with Schafer again to work out the hostile

situation. Nallick responded that Harris “would just play the race card” and nothing would be done.

Another employee, Randy Allman, was listening and nodded his head in agreement with Nallick’s

comment that going to Schafer would be futile.


       A month later, Allman sent an anonymous letter to Human Resources alleging that the

plaintiffs repeatedly missed work without authorization. In the Airbus workgroup, employees

maintained a work schedule on a computerized spreadsheet; because all 130 employees could freely

make changes to the document, one employee called it “just a free for all amongst the employees.”


                                                -2-
No. 13-5010
Reynolds v. Fed. Express Corp.


Reynolds and Harris worked the night shift, and their schedule overlapped three nights a week, so

theoretically one could cover duties for the other three times a week. In his letter Allman alleged that

the plaintiffs “were failing to show up for work” typically on a night their schedules

overlapped and not calling in or documenting the absence. Allman also accused Schafer of “failing

to properly manage the workgroup or stop the fraudulent activity.”


        Because the anonymous letter implicated Schafer, FedEx enlisted Schafer’s supervisor, Mike

Smith, to investigate the allegations against Reynolds and Harris. Over the next month, Smith

prepared a spreadsheet comparing the work schedule with evidence of the plaintiffs’ attendance,

including computer login activity, badge access to the facility, and shift notes. The spreadsheet

revealed 20 absences for Reynolds and 23 for Harris, typically on nights their shifts overlapped.

Smith, contemplating firing the plaintiffs, suspended Harris and Reynolds with pay while he

completed his investigation.


        When Smith confronted them with news of the suspension, Harris and Reynolds responded

by reporting Nallick’s harassment of Harris. Harris also admitted taking off four days without

documenting them on the schedule but claimed that a coworker gave him permission. Reynolds

admitted taking four days off but assumed she could because Schafer had allowed two other

coworkers to do so and told the rest of the group that they could do the same when manpower

allowed. Unpersuaded by these explanations, Smith fired Harris and Reynolds 20 days later.




                                                 -3-
No. 13-5010
Reynolds v. Fed. Express Corp.


       Harris and Reynolds sued FedEx, claiming that it fired them because of race or in retaliation

for reporting racial harassment, in violation of Title VII. See 42 U.S.C. §§ 2000e-2 (racial

discrimination), 2000e-3 (retaliation). They pursued two theories relevant here. First, they alleged

that Allman and Nallick retaliated against them by sending the anonymous letter and instigating the

investigation into their absenteeism. Acknowledging that Allman and Nallick did not and could not

fire them, the plaintiffs relied on the “cat’s-paw” doctrine of employer liability established in Staub

v. Proctor Hospital, 131 S. Ct. 1186 (2011). Staub held that “if a [non-decisionmaking] supervisor

performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an

adverse employment action, and if that act is proximate cause of the ultimate employment action,”

the employer may be liable for discrimination. Id. at 1194 (alteration omitted). And recognizing that

Allman and Nallick did not supervise them, the plaintiffs argued that Staub extends to coworker

misconduct. Second, the plaintiffs alleged that Smith fired them because they reported Nallick’s

harassment to him. Harris also claimed that his supervisors tolerated a racially hostile work

environment.


       The district court granted summary judgment to FedEx on all counts. The court reasoned

that, even if the plaintiffs could prove that Allman or Nallick influenced their firing, Staub applies

only to supervisor misconduct. Moreover, Harris and Reynolds could not establish the causation

element of their retaliation claim because Smith contemplated firing the plaintiffs before they

complained to him about Nallick’s harassment. See Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668,

673 74 (6th Cir. 2013) (noting that plaintiff claiming retaliation must prove causation). Finally,

                                                 -4-
No. 13-5010
Reynolds v. Fed. Express Corp.


citing the “ambiguity and lack of detail” in Harris’s evidence, the court rejected his hostile-work-

environment claim. Reynolds and Harris appeal.


                                                  II.


       The parties dispute whether the cat’s-paw theory of employer liability extends to prejudicial

coworkers’ actions that influence an adverse employment action. We need not reach this question,

however, because the plaintiffs cannot prove that a biased coworker influenced their firing. An

employer’s liability under Staub potentially extends only to a non-decisionmaker’s act motivated by

discriminatory animus and intended to cause an adverse employment action. See Staub, 131 S. Ct.

at 1194; Sharp v. Aker Plant Servs. Grp., Inc., - - - F.3d - - - - , No. 11-5419, 2013 WL 4038583, at

*6 (6th Cir. Aug. 9, 2013); Davis v. Omni-Care, Inc., 482 F. App’x 102, 109 (6th Cir. 2012) (noting

that the cat’s paw “theory involves circumstances where a seemingly unbiased decisionmaker makes

an adverse employment decision that was in part motivated by a biased subordinate ”). The plaintiffs

offer no evidence showing that Allman, the author of the letter instigating the investigation, harbored

discriminatory bias. Just because he apparently agreed with Nallick’s comment that Schafer would

do nothing about the harassment does not mean he agreed with the alleged racial bias underlying the

harassment. Nor do the plaintiffs show any connection between Nallick and the decision to send the

letter. Allman did testify that before sending the letter to HR he gave Nallick a copy and that Nallick

thanked him for the information. (R. 46-18, Allman Dep. at 17 18.) But this testimony shows at

most that Nallick only knew about the letter, and in fact Allman testified that he drafted the letter by


                                                 -5-
No. 13-5010
Reynolds v. Fed. Express Corp.


himself. (Id. at 17.) Because Nallick undisputedly played no role in the plaintiffs’ termination, any

discriminatory animus on his part does not apply to the cat’s-paw determination. See Roberts v.

Principi, 283 F. App’x 325, 332 (6th Cir. 2008). Thus the cat’s-paw doctrine does not apply here.


       The plaintiffs also contend that they can prove the causation element of their retaliation claim

because Smith fired them a mere 20 days after they complained to him about discrimination. True,

“this Circuit has embraced the premise that in certain distinct cases where the temporal proximity

between the protected activity and the adverse employment action is acutely near in time, that close

proximity is deemed indirect evidence such as to permit an inference of retaliation to arise.”

DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004) (emphasis added); see also, e.g., Seeger v.

Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 84 (6th Cir. 2012). But this is not one of those

distinct cases because Smith undisputedly contemplated firing the plaintiffs     and conducted most

of his investigation into their absenteeism   before hearing the complaint of discrimination. Smith

prepared a spreadsheet in September 2008 comparing the plaintiffs’ work schedule with evidence

of their absenteeism, wrote a letter dated October 7, 2008, notifying plaintiffs of their suspension,

and met with the plaintiffs on October 8, 2008, discussing their suspension. Only at that meeting

did Reynolds complain to Smith, who had never before heard about the harassment. That he fired

the plaintiffs 20 days later “is immaterial in light of the fact that [FedEx] concededly was

contemplating [the adverse employment action] before it learned of [the protected activity].” Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (per curiam). Employers “proceeding along

lines previously contemplated, though not yet definitively determined, is no evidence whatever of

                                                -6-
No. 13-5010
Reynolds v. Fed. Express Corp.


causality.” Id.; Reynolds v. Extendicare Health Servs., Inc., 257 F. App’x 914, 919 20 (6th Cir.

2007); Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 584 85 (5th Cir. 2006).


       The plaintiffs cannot rely on temporal proximity, therefore, and nothing else shows that

Smith fired them because of retaliatory animus. They point to evidence that Smith did not fire

Allman and another coworker for taking certain days off, but those workers (unlike the plaintiffs)

received advance permission from the manager. (R. 46-1, Pl.’s Disputed Issues of Material Fact, ¶¶

28 29.) Likewise, that Smith did not impose further discipline for Nallick’s harassment beyond

requiring online counseling does not suggest bias on Smith’s part; Smith reasonably responded to

a first complaint of harassment by requiring counseling for the harasser. See Faragher v. City of

Boca Raton, 524 U.S. 775, 807 (1998) (employers need only exercise reasonable care to correct

harassing behavior); Wilson v. Moulsin North Corp., 639 F.3d 1, 9 (1st Cir. 2011) (a verbal warning

“will ordinarily constitute an appropriate response to most instances of employee misconduct”).


       Even if the plaintiffs could establish a prima facie case of retaliation, they cannot prove that

FedEx’s stated reason for the firing absenteeism      was pretext for discrimination. A plaintiff must

show that the employer did not honestly believe the reasons cited for the adverse employment action.

A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013); Braithwaite v.

Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). A plaintiff may show that an employer does not

honestly believe the reasons for its decision because it acted without information or consideration.

A.C., 711 F.3d at 706; Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Here Harris and


                                                -7-
No. 13-5010
Reynolds v. Fed. Express Corp.


Reynolds offer no such evidence. Sure, the parties dispute accuracy of the facts underlying Smith’s

decision to terminate the plaintiffs’ employment    for example, several employees testified to the

potential inaccuracy of the work schedule Smith partly relied on, and the HR manager testified that

relying on an inaccurate schedule violates the company’s fair-treatment policy. But nothing suggests

an “error too obvious to be unintentional,” Smith, 155 F.3d at 807 (quotation omitted), or a sham

investigation.


       Smith made an informed, reasoned decision to terminate the plaintiffs’ employment for

taking unauthorized time off. He prepared a detailed spreadsheet comparing the work schedule with

objective evidence of the plaintiffs’ attendance, including computer login activity, badge access to

the facility, and shift notes. All this occurred before Smith met with the plaintiffs and heard about

the workplace discrimination. And, after that meeting, the plaintiffs admitted taking multiple

undocumented and unauthorized days off work. (R. 46-1, Pl.’s Disputed Issues of Material Fact,

¶¶ 28, 31.) Moreover, one coworker (besides Allman and Nallick) told Smith during an interview

that they believed the plaintiffs had been taking unauthorized time off work. (R. 51-4, Bunker Dep.

at 24 26.) No jury could reasonably infer pretext from this investigation. See Smith, 155 F.3d at 807

(“[C]ourts do not require that the decisional process used by the employer be optimal or that it left

no stone unturned.”); Fuentes v. Perski, 32 F.3d 759, 765 (3d Cir. 1994) (“[T]he factual dispute at

issue is whether discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent or competent.”).



                                                -8-
No. 13-5010
Reynolds v. Fed. Express Corp.


       Harris also presses his hostile-work-environment claim, which requires that he show conduct

so objectively severe or pervasive that it created an abusive work environment. See Harris v.

Forklift Sys., 510 U.S. 17, 22 23 (1993); Kuhn v. Washtenaw Cnty., 709 F.3d 612, 626 27 (6th Cir.

2013). Courts consider evidence regarding “the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23; see also

Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009). The evidence needs to be specific a

plaintiff may not rely on only, for example,“one specific incident of the use of a . . . race-based

epithet” over entire span of her five-year employment and an otherwise “total lack of specificity as

to verbal abuse.” Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 501 (6th Cir. 2009); see also Warf

v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 879 (6th Cir. 2013) (not enough to “alleg[e] multiple

instances of mistreatment” while “only provid[ing] evidentiary support for two incidents”).


       Harris’s evidence lacks specificity. He testified at a deposition that “there were times” when

Nallick (either directly or through a coworker) called him a “scab” or said that “you people” should

not work at FedEx, one time calling him a “scab nigger.” But Harris testified about harassment on

only two specific occasions. And when asked at his deposition how many times he heard Nallick’s

comments, Harris responded that “I can’t give you a count”      never explaining the frequency of the

comments, or how the comments affected his work. (R. 46-8, Harris Dep. at 29.) The statute

protects against a work environment with hostility so severe or pervasive that it alters the conditions

of one’s employment. See 42 U.S.C. § 2000e-2(a); Williams v. CSX Transp. Co., 643 F.3d 502, 511

                                                 -9-
No. 13-5010
Reynolds v. Fed. Express Corp.


(6th Cir. 2011). A worker does not establish a hostile-work-environment claim by testifying that

“there were times” he faced verbal abuse but specifically identifying only two occasions.


                                               III.


       For these reasons, we AFFIRM the judgment of the district court.




                                              - 10 -
