                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0424n.06

                                           No. 11-5102

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
JOHNNIE W. BROOKS, JR.,
                                                                                  Apr 17, 2012
       Plaintiff-Appellant,                                                   LEONARD GREEN, Clerk

v.                                                   On Appeal from the United States District
                                                     Court for the Middle District of Tennessee
DAVEY TREE EXPERT COMPANY,

      Defendant-Appellee.
____________________________________/


BEFORE:        MERRITT and COOK, Circuit Judges; and COX, District Judge.*



       COX, District Judge. Plaintiff-Appellant Johnnie Brooks, Jr. appeals from the order and

judgment of the district court granting Defendant-Appellee The Davey Tree Expert Company’s

motion for summary judgment in this action under the Age Discrimination Employment Act, 29

U.S.C. § 621 et seq. (“the ADEA”). As explained below, because Brooks has established a prima

facie case of age discrimination and has submitted sufficient evidence of pretext, we shall reverse

the district court’s summary judgment ruling and remand the case for trial.




       *
       The Honorable Sean F. Cox, United States District Court Judge for the Eastern District of
Michigan, sitting by designation.

                                                1
No. 11-5102
Brooks v. Davey Tree


                                          BACKGROUND1

        Brooks began working for Morehead Tree Surgery in approximately 1980. While employed

there, Brooks worked his way up to foreman, after first having worked as both a bucket operator and

a climber.

        In January of 1995, Davey Tree acquired the assets of Morehead Tree Surgery and Brooks

became a Davey Tree employee. Brooks continued to hold a foreman position when he began

working for Davey Tree. At that time, Brooks was 41 years old. Brooks was assigned to Davey

Tree’s Clarksville, Tennessee utility contract. Under that contract, Davey Tree engaged in the

practice of line clearings for public utilities, including the clearing of tree growth from power lines,

clearance of rights-of-way, and chemical brush control.

        On February 2, 1995, Brooks’s supervisor signed various “Certificates of Training and

Demonstrated Proficiency” for Brooks as a foreman, indicating that Brooks had received training

in various areas and was proficient in performing various job duties.

        A foreman’s job duties include conducting safety meetings or “job briefings,” as well as

writing time reports and other required paperwork.

        In August of 2007, James Barker became Brooks’s supervisor. Matthew Little served as

Davey Tree’s Area Manager and, at all relevant times, was Barker’s supervisor.




        1
         Because the Court is reviewing a district court’s entry of summary judgment, the facts are
described here in the light most favorable to the plaintiff, resolving all factual disputes in his favor.
Blair v. Henry Filters, Inc., 505 F.3d 517, 520 n.1 (6th Cir. 2007), overruled on other grounds by
Gross v. FBL Fin. Servs., 557 U.S. 129 S.Ct. 2343, 2352 (2009).

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No. 11-5102
Brooks v. Davey Tree


       Barker made age-biased comments to Brooks at work and a few of those instances stuck out

in Brooks’s mind because they “really made [him] mad.” (Brooks Dep. at 116).

       The first time Barker made such a comment to Brooks was early in Barker’s employment

with Davey Tree, during the second or third time that Barker went to see Brooks on the job. (Id. at

91-92). Brooks was working with a saw when Barker came up behind him, punched him in the ribs,

and said, “you’re too old to be doing that kind of stuff anymore.” Barker was not smiling when this

occurred. After Brooks responded that he could do his work “just like anybody else,” Barker asked

Brooks if he had his paperwork ready and said nothing else. (Id.).

       Another incident occurred in September of 2007, while Brooks and his crew were at a safety

meeting. Within earshot of Brooks and his crew, Barker said that Brooks was “too old to do his

work anymore.” (Brooks Dep. at 93-94).

       On another occasion, Barker called Brooks “an old fart” and said to Brooks, “I still think

you’re too old.” (Id. at 95-96 & 113).

       Brooks testified that he did not report Barker’s comments to Little because Barker and Little

were “buddy-buddies,” and he did not want to lose his job. (Id. at 97-98).

       Davey Tree employee James Brice2 testified that, on several occasions, Barker said that if

Brooks “was too old to get out and do his job – or get out and do simple minimal tasks, that he didn’t

need to be working at Davey at all.” (Brice Dep. at 32).




       2
        This individual’s name is spelled differently throughout the briefs and exhibits (i.e., Brice,
Bryce, and Brys). James Brice testified that his legal name is James Martin Brice, Jr. (Brice Dep.
at 5).

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No. 11-5102
Brooks v. Davey Tree


           On January 22, 2007, Davey Tree issued a “Safety Gram,” stating that at least one job

briefing shall be conducted before the start of the first job of each day. In November of 2007, Davey

Tree began requiring foremen to write down what they discussed during job briefings and have each

crew member sign off that the job briefing was held.

       Brooks was terminated following an accident that occurred on February 21, 2008. Prior to

that accident, in the approximately thirteen years that Brooks worked for Davey Tree, he had

received two safety violation notices.

       The first safety violation notice was on June 25, 1998, when Brooks received a “Safe Practice

Violation Notice,” from a supervisor named Jeff Wiley. That Notice described the violation as “Tree

should have been pieced down instead of 1 large trunk, Foreman has been instructed to get with

utility company to drop wires in the future.” (6/25/98 Violation Notice).

       The second violation notice was issued by Barker on December 6, 2007. That notice marked

the line “Violation Not Listed Above, Explain Below,” and then stated: “Foreman has been told all

safety rules & proper procedures listed above. He (John Brooks) allowed crew member to break

minimum approach distance. He also allowed crew member to operate the bucket w/out safety belt.”

(12/6/07 Violation Notice).3


       3
         While it is undisputed that Barker issued a notice on December 6, 2007, the parties disagree
as to its substance. Both parties agree that it included the above statement regarding breaking
minimum approach distance. They disagree as to whether Barker had also marked the line on that
notice indicating “No Job Briefing Conducted.” In support of its motion, Davey Tree submitted a
copy of the notice with that line checked. Brooks, however, submitted an Affidavit stating: “On the
6th of December, 2007, I received a Safe Practice Violation Notice from Davey Tree issued by James
E. Barker on 12/6/2007. My copy is attached hereto. It is a carbon copy clearly shows that ‘no
briefing conducted’ was not checked at the time I was provided this document. The version offered
by Defendant was altered after I was given my copy.” (Brooks Affidavit at ¶ 3). The color copy of

                                                 4
No. 11-5102
Brooks v. Davey Tree


       A typical Davey Tree tree-trimming crew consists of three employees: 1) a foreman, 2) a

climber, and 3) a grounds person.

       There were two crews working in the Clarksville area on February 21, 2008: 1) Brooks’s

crew; and 2) a crew managed by foreman William Parks. Brooks was the foreman for his crew,

Richard Price was the climber, and James Brice was the grounds person. The other crew consisted

of foreman William Parks, climber Phil Wagenbaugh, Sr., and grounds person Phil Wagenbaugh,

Jr.

       On February 20, 2008, the day prior to starting work at the site, Brooks and his crew drove

there to see what they were going to have to do at that site. That job was to “clear cut” (i.e., cut

everything down to the ground) an area for a power line. At approximately 3:00 p.m. that day,

Brooks and his crew, and Parks and his crew, walked the site but no cutting took place.

       The next day, February 21, 2008, Brooks and his crew got to the site at about 7:00 a.m. It

was drizzling rain. Brooks testified that he held a job briefing with his crew at approximately 7:00

a.m. Parks held his own job briefing with his crew.

       While the crews were getting their chainsaws ready, Brooks and Parks walked down to the

site and discussed that the job would not take very long. Brooks told Parks that Eddie Combs, the

“lighting boss,” was coming to the site. Brooks walked back to his truck to wait for Combs and told

his crew to go down to the site with Parks.



the notice submitted by Brooks is identical to the copy submitted by Davey Tree – except that the
“No Job Briefing Conducted” line is not checked. Because the evidence must be construed in the
light most favorable to Brooks, for purposes of this motion, the notice did not indicate that Brooks
failed to conduct a job briefing.

                                                 5
No. 11-5102
Brooks v. Davey Tree


       Combs arrived shortly thereafter. Combs left after 10 or 15 minutes and Brooks went back

to his truck to finish some Davey Tree paperwork. Brooks testified that he had just finished his

paperwork, and stepped out of his truck, when his cellular phone rang. It was a crew member calling

to tell him that Parks, the foreman of the other crew, had been hit by a tree.

       Brooks called Barker and advised of the accident. Barker came to the site at approximately

10:00 a.m. on February 21, 2008, and asked Brooks what happened. Brooks told Barker that Parks

was cutting a tree and got hit by it. Brooks did not have any further discussions with Barker about

the accident and Barker did not speak to anyone else at that time.

       Brooks testified that he wrote out the job briefing document the morning of February 21,

2008, before Combs arrived at the site. He further testified that he had his crew sign the job briefing

document after Barker left, between 10:00 and 10:30 a.m. Brooks and his crew then worked the

remainder of the work day.

       On February 21, 2008, Barker issued a Safety Practice Violation Notice regarding Brooks

that checked lines stating: 1) “No Job Briefing Conducted,” 2) “Not Performing Davey Exercises;”

3) “Not Completing Training Requirements;” and 4) “Violation Not Listed Above, Explain Below.”

The explanation on the form then stated: “On 2-21-08 John Brooks never got out of truck. Crew

went down a hill – 600-700 yards to cut rightaway. No job briefing or daily exercises was done. He

never got out of truck until employee got hurt. He has had 2 verbal warnings not to sit in truck.”

(2/21/08 Notice).

       After the accident, Price talked with Barker. Barker told Price that he wanted a statement

from him saying that Brooks had not given a safety meeting on the day of the accident. Price


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No. 11-5102
Brooks v. Davey Tree


testified that, because Brooks had given a safety meeting on the day of the accident, he would not

sign a statement stating otherwise. He re-wrote the statement to say: “On 2-21-08 After Richard

Parks got hurt Johnny Brooks told us to sign a Job Briefing saying we had meeting before accident.”

(2/21/08 Statement).

       After the accident, Barker also spoke to Brice about whether Brooks conducted a job briefing

on the day of accident. Although his testimony reflects that he did not believe the statement to be

accurate, Brice also ultimately signed the same statement that Price had signed. Brice testified as

follows:

       Q.      What did you tell Mr. Barker?
       A.      He asked me if John did the safety meeting. And I said yes.
               And he said did you guys sign the safety form. And I said yes. And he goes,
       “When did you sign it?” I told him when we usually signed it – on our first break.
               Then he was like, that’s supposed to be done during the beginning. I was
       like, well, he gave us the safety meeting.
               He goes, so, are you telling me you put your job on the line that you had the
       safety meeting in the beginning. And I said, “Where are you coming from with this?”
       And he goes, John didn’t do his job. I was like, “I don’t know what you want me to
       tell you.” And he’s like, “Well, did he do his job.” I said I think he did his job.
               I mean, we do this all the time. We were all there. We took the meeting. He
       said, “Well, we’ll have to wait and see what’s going on here.” Then he just grabbed
       somebody else.

(Brice Dep. at 28). Brice testified that Barker spoke to him again before Brooks was terminated:

       Q.      Did you ever have another occasion to speak with Mr. James Barker about
               what happened?
       A.      Yes.
       Q.      When?
       A.      When he notified us that it looked like John was going to be terminated and
               he was smiling about it and giggling. I was like, okay, I don’t see the humor
               in this.


                                                 7
No. 11-5102
Brooks v. Davey Tree


                He came over and took us, again, one by one. And he took me over and said
       this is the statement. And I was like, “What statement?”
                He goes, this is the statement of what happened. So I read it, and I was like,
       “This didn’t happen. It didn’t happen like this.”
                He was like, “Well, this is how it goes. I don’t want John here. He – Ronnie
       Kemp is not the runner of Davey Tree. He doesn’t get to decide who gets to stay and
       who doesn’t.” He goes, “You want your job, this is what happened.”
                I have two kids. I signed it. And I told him that one day I’m going to
       remember the meeting. Someone’s going to ask me about the truth and I’m not going
       to lie.
       ....
       Q.       What did you understand from Mr. Barker would happen if you refused to
                sign that?
       A.       He made it clear that I would be unemployed.

(Brice Dep. at 28-30).

       The accident occurred on Thursday, February 21, 2008. The next time that Brooks spoke to

Barker was on Sunday, when Brooks called to see how Parks was doing. Barker told Brooks to

return his keys and to call Little. Brooks then called Little. Little told Brooks that he had a choice

of resigning or being fired. When Brooks asked him why he was being fired, Little told Brooks that

he and the safety department had determined that if Brooks would have been down in the gully the

accident might not have taken place. (Brooks Dep. at 83-84).

       Brooks advised that he did not wish to resign and Davey Tree terminated Brooks. Davey

Tree’s interrogatory responses state that Little, upon recommendation from Barker, terminated

Brooks’s employment.

       Davey Tree’s February 29, 2008 “Change to Inactive Status” form for Brooks states that he

was involuntarily discharged. That form was completed by Barker and indicated that Brooks had

been terminated on February 27, 2008. The form asked whether the employee was “subjected to

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No. 11-5102
Brooks v. Davey Tree


disciplinary action prior to termination,” which was marked Yes. The Remarks section of the form

stated:

          Employee was given written warning and 2 days off – on file. Employee failed to
          give job briefing on 2-21-08 and after employee got hurt Johnny got other crew
          members to sign job briefing. Johnny was in truck asleep and also same day of
          accident Eddie Combs came to job site and Johnny was in truck asleep. He has been
          told by supervisor not to sit in truck.

(2/29/08 Change to Inactive Status Form).

          Price testified that, following Brooks’s termination, Barker bragged that he had fired Brooks.

(Price Dep. at 51-52). Barker also made comments about getting rid of all the “old crew,” saying

repeatedly that he was “firing the old guys and bringing in the new guys because the new guys were

more teachable and the old guys had old habits.” (Price Dep. at 52).

          On November 25, 2009, Brooks filed this action in the United State District Court for the

Middle District of Tennessee, alleging that he was wrongfully terminated based on his age, in

violation of the ADEA and the Tennessee Human Rights Act, T.C.A. § 4-21-101 et seq. (“THRA”).

          The district court granted summary judgment in favor of Davey Tree. Brooks timely

appealed.

                        JURISDICTION AND STANDARD OF REVIEW

          The district court had federal question jurisdiction under 28 U.S.C. § 1331, and we have

appellate jurisdiction under 28 U.S.C. § 1291.

          We review the district court’s grant of summary judgment de novo. Geiger v. Tower Auto.,

579 F.3d 614, 620 (6th Cir. 2009) (citing Niemi v. Spring Co., 543 F.3d 294, 298 (6th Cir. 2008)).

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material

                                                    9
No. 11-5102
Brooks v. Davey Tree


fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We draw all

reasonable inferences from the record in the light most favorable to the nonmoving party, and we

only grant summary judgment “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (citation omitted). Appellate courts reviewing a grant of summary judgment may

affirm on any grounds supported by the record, even on grounds that are different from those

considered or relied on by the district court. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 569

(6th Cir. 2001) (citing United States v. Allen, 106 F.3d 695, 700 n.4 (6th Cir. 1997)).

                                           ANALYSIS

       The ADEA prohibits an employer from failing or refusing to hire, discharging, or

discriminating “‘against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.’” Provenzano v. LCI Holdings, Inc.,

663 F.3d 806, 811 (6th Cir. 2011) (quoting 29 U.S.C. § 623(a)(1)). “A plaintiff may establish a

violation of the ADEA4 by either direct or circumstantial evidence.” Id.

       In granting summary judgment in favor of Davey Tree, the district court assumed that Brooks

could establish a prima facie case of age discrimination but concluded that he had not presented

sufficient evidence from which a jury could reasonably reject Davey Tree’s nondiscriminatory reason




       4
        While his complaint asserted claims under both the ADEA and the THRA, Brooks only
appeals the district court’s ruling as to his ADEA claim.

                                                10
No. 11-5102
Brooks v. Davey Tree


for his termination. We disagree and find that Davey Tree is not entitled to summary judgment under

the circumstantial evidence approach.5

       The familiar “three-step framework developed in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and modified by Texas Dep’t of Community Affairs

v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), guides the analysis of age

discrimination claims based upon circumstantial evidence.” Provenzano, 663 F.3d at 811-12. “In

the first step, the employee carries the initial burden of establishing a prima facie case of age

discrimination; if the employee meets this burden, the second step requires the employer to respond

by articulating some legitimate, nondiscriminatory reason for the adverse employment action at

issue.” Id. at 812 (citing McDonnell Douglas, 411 U.S. at 802). “Third, assuming such a response

is made, the employee then bears the burden of rebutting this proffered reason by proving that it was

pretext designed to mask discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804).

       In order to establish a prima facie case of age discrimination under the ADEA, Brooks must

show that: 1) he was at least 40 years old at the time of the alleged discrimination; 2) he was

subjected to an adverse employment action; 3) he was qualified for the position; and 4) he was

replaced by someone outside the protected class. Schoonmaker v. Spartan Graphics Leasing, LLC,

595 F.3d 261, 264 (6th Cir. 2010).

       At issue here is the third prong of the prima facie case – whether Brooks was qualified for

the position of foreman.



       5
         Given this conclusion, we need not address Brooks’s alternative argument that he can
establish a violation of the ADEA by direct evidence.

                                                 11
No. 11-5102
Brooks v. Davey Tree


        “At the prima facie stage, a court should focus on a plaintiff’s objective qualifications to

determine whether he or she is qualified for the relevant job.” Wexler v. White’s Fine Furniture,

Inc., 317 F.3d 564, 575 (6th Cir. 2003) (emphasis in original). The prima facie burden of showing

that a plaintiff is qualified can be met by presenting “credible evidence that his or her qualifications

are at least equivalent to the minimum objective criteria required for employment in the relevant

field.” Id. at 576. “Although the specific qualifications will vary depending on the job in question,

the inquiry should focus on criteria such as the plaintiff’s education, experience in the relevant

industry, and demonstrated possession of the required general skills.” Id.

        Here, Brooks has presented sufficient evidence to create a question of fact as to whether he

was qualified for his position as foreman at Davey Tree. Brooks had more than 30 years of

experience in the relevant industry, including 23 years of experience working as a foreman. When

Davey Tree acquired the assets of Morehead Tree Surgery, Brooks became a Davey Tree employee.

Brooks continued to hold a foreman position when he began working for Davey Tree and his

supervisor signed various “Certificates of Training and Demonstrated Proficiency” for him as a

foreman, indicating that Brooks had received training in various areas and was proficient in

performing the various job duties of a foreman.

        Once a plaintiff meets his burden of establishing a prima facie case, the burden then shifts

to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff

was terminated for a legitimate, nondiscriminatory reason. Burdine, 450 U.S. at 254.

        Davey Tree contends that Brooks was terminated because Little and the safety department

determined that the accident with Parks might not have occurred if Brooks had been down in the


                                                  12
No. 11-5102
Brooks v. Davey Tree


gully at the time of the accident, because Brooks failed to conduct a job briefing on-site, and because

Brooks required his crew to sign job briefing acknowledgment only after the accident.

       Brooks may show pretext either directly, by persuading the trier of fact that a discriminatory

reason more likely than not motivated the employer, or indirectly, by showing that the employer’s

proffered explanation is unworthy of credence. Wright v. Murray Guard, Inc., 455 F.3d 702, 707

(6th Cir. 2006).

       A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers to

justify an adverse employment action by showing that the proffered reason: 1) had no basis in fact;

2) did not actually motivate the defendant’s challenged conduct; or 3) was insufficient to warrant the

challenged conduct. Wexler, 317 F.3d at 576 (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000)); Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994),

overruled on other grounds by Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S.Ct. 2343, 2352, 174

L.Ed.2d 119 (2009). The first type of showing consists of evidence that the proffered bases for the

termination never happened (i.e., that they are factually false). With respect to the second kind of

showing, “the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination

makes it ‘more likely than not’ that the employer’s explanation is a pretext, or coverup.” Manzer,

29 F.3d at 1084. The third showing consists of evidence that other employees, particularly those not

in the protected class, were not fired even though they engaged in similar conduct. Id.

       Where a case is at the summary judgment stage, a plaintiff seeking to prove discrimination

via indirect evidence must submit sufficient evidence from which a reasonable jury could conclude

that the defendant’s nondiscriminatory reasons for its actions are a pretext for unlawful


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No. 11-5102
Brooks v. Davey Tree


discrimination. Vincent v. Brewer Co., 514 F.3d 489, 494 (6th Cir. 2007). We conclude that Brooks

has done so here.

        “One way in which a plaintiff may demonstrate pretext is by showing that the reason given

by the employer ‘is ultimately found to be mistaken, foolish, trivial, or baseless.’” Clay v. United

Parcel Service, Inc., 501 F.3d 695, 714 (6th Cir. 2007) (quoting Smith v. Chrysler Corp., 155 F.3d

799, 806 (6th Cir. 1998)). Here, Brooks offers evidence that, when construed in the light most

favorable to him, could establish that the proffered reason for his discharge has no basis in fact.

        Little gave Brooks one reason for his termination – that Little “and the safety department”

had determined that if Brooks would have been down in the gully, Parks’s accident might not have

occurred.

        Brooks testified, however, that before he was discharged, the only conversation he had with

Barker about the accident consisted of Brooks telling Barker that Parks was cutting a tree and got

hit by it. Brooks also testified that Barker did not speak to anyone else when he arrived at the scene

following the accident. In addition, the only conversation Brooks had with Little after the accident

consisted of Little informing Brooks that he could either resign or he was being fired. In discovery,

Brooks sought documents regarding any investigations done by the safety department and none were

produced. Moreover, Davey Tree has not articulated how or why Little or the safety department

believed the accident would have been prevented if Brooks had been in the gully at the time of the

accident. Price, who was on the scene at the time of the accident, testified that, even with the benefit

of hindsight, he does not see how the accident could have been prevented. Moreover, as Brooks

stresses, Parks was not a member of Brooks’s crew – Parks was the foreman of another crew. Thus,


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No. 11-5102
Brooks v. Davey Tree


Brooks was not charged with supervising Parks or conducting a job briefing with Parks. A

reasonable juror could conclude that Davey Tree blamed the accident on Brooks without factual

basis, as pretext for firing him.

        Davey Tree responds that Brooks cannot establish pretext because Davey Tree had an “honest

belief” that its termination of Brooks was proper. In doing so, Davey Tree cites several decisions

from the Seventh Circuit.

        “Under the ‘honest belief’ rule developed by the Seventh Circuit, ‘so long as the employer

honestly believed in the proffered reason,’ an employee cannot prove pretext even if the employer’s

reason in the end is shown to be ‘mistaken, foolish, trivial, or baseless.’” Wright , 455 F.3d at 707-08

(quoting Smith, 155 F.3d at 806). The Sixth Circuit, however, has rejected the Seventh Circuit’s

“bare ‘honest belief’ doctrine’” and instead has adopted “a modified honest-belief approach.” Id.

        Under the Sixth Circuit’s modified approach, for an employer to avoid a finding that its

claimed nondiscriminatory reason was pretextual, the employer “must be able to establish its

reasonable reliance on the particularized facts that were before it at the time the decision was made.”

Id. (citing Smith, 155 F.3d at 806-07). The Sixth Circuit has explained:

        In determining whether an employer “reasonably relied on the particularized facts
        then before it, we do not require that the decisional process used by the employer be
        optimal or that it left no stone unturned. Rather, the key inquiry is whether the
        employer made a reasonably informed and considered decision before taking an
        adverse employment action.” Id. (citing Burdine, 450 U.S. at 256, 101 S.Ct. 1089).
        Although we will not “micro-manage the process used by employers in making their
        employment decisions,” we also will not “blindly assume that an employer’s
        description of its reasons is honest.” Id. Therefore, “[w]hen the employee is able to
        produce sufficient evidence to establish that the employer failed to make a reasonably
        informed and considered decision before taking its adverse employment action,
        thereby making its decisional process ‘unworthy of credence,’ then any reliance

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No. 11-5102
Brooks v. Davey Tree


        placed by the employer in such a process cannot be said to be honestly held.” Id. at
        807-08.

Wright, 455 F.3d at 708 (alteration in original).

        “The honest-belief rule is, in effect, one last opportunity for the defendant to prevail on

summary judgment” by rebutting the plaintiff’s evidence of pretext, by demonstrating that the

defendant’s action was not taken with discriminatory intent. Clay, 501 F.3d at 714-15. Once Brooks

has submitted evidence showing that Davey Tree’s reason for his termination was without a basis

in fact, in order to avail itself of the honest-belief rule and prevail on summary judgment, the burden

is on Davey Tree to “point to specific facts that it had at the time the decision was made which would

justify its belief in the proffered reason.” Id. at 714.

        Davey Tree has not met that burden here. Davey Tree states that Little made the decision to

terminate Brooks, but Davey Tree has not offered any deposition testimony or an affidavit from

Little. Indeed, Davey Tree has not submitted any evidence that establishes the specific facts that

Little had at the time he made the decision to terminate Brooks.

        As further evidence of pretext, Brooks points to the age-biased remarks by Barker. On one

occasion, Barker came up behind Brooks on the job, punched him in the ribs, and said, “you’re too

old to be doing that kind of stuff anymore.” On another occasion, Barker told another crew, within

earshot of Brooks and his crew, that Brooks was “too old to do his work anymore.” On yet another

occasion, Barker called Brooks an “old fart” and said “I still think you’re too old.”

        Brice testified that, on several occasions, Barker said that if Brooks “was too old to get out

and do his job – or get out and do simple minimal tasks, that he didn’t need to be working at Davey



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No. 11-5102
Brooks v. Davey Tree


at all.” In addition, although the comments were not made specifically about Brooks, Brice also

testified that Barker “said repeatedly he was firing the old guys and bringing in the new guys because

the new guys were more teachable and the old guys had old habits.”

       The Sixth Circuit has held that “discriminatory remarks, even by a nondecisionmaker, can

serve as probative evidence of pretext.” Risch v. Royal Oak Police Dep’t. 581 F.3d 383, 393 (6th

Cir. 2009). In assessing the relevancy of a discriminatory remark, the court first looks at the identity

of the speaker. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998). “An

isolated discriminatory remark made by one with no managerial authority over the challenged

personnel decisions is not considered indicative of age discrimination.” Id. But such remarks made

by individuals “who did not independently have the authority or did not directly exercise their

authority to fire the plaintiff, but who nevertheless played a meaningful role in the decision to

terminate the plaintiff” are relevant. Id. at 354-55.

       The court must also “examine the substance of the discriminatory remarks in determining

their relevancy to a plaintiff’s claim that an impermissible factor motivated the adverse employment

action taken against him or her.” Id. at 355. Isolated and ambiguous comments are too abstract to

support a finding of discrimination.       Id.   Although a “direct nexus between the allegedly

discriminatory remarks and the challenged employment action affects the remark’s probative value,

the absence of a direct nexus does not necessarily render a discriminatory remark irrelevant.” Id.

       Davey Tree states that Little terminated Brooks on the recommendation of Barker. Thus,

Barker played a meaningful role in the decision to terminate Brooks and any age-biased remarks he




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made to or about Brooks are relevant. Moreover, the remarks Barker allegedly made to Brooks about

his being too old to do his job cannot be characterized as ambiguous or abstract.

        In addition, “when assessing the relevancy of an allegedly biased remark where the plaintiff

presents evidence of multiple discriminatory remarks or other evidence of pretext,” the remarks are

not viewed in isolation and the court should be “mindful that the remarks buttress one another as

well as any other pretextual evidence supporting an inference of discriminatory animus.”

Ercegovich, 154 F.3d at 356. Here, Brooks presents evidence of multiple age-biased remarks by

Barker – in addition to other evidence of pretext. To the extent that Davey Tree relies on Brooks’s

failure to conduct a job briefing at the work site as a reason for termination, a reasonable jury could

discount this as an after-the-fact rationalization. The policy statements in Davey Tree’s Safety Gram

contain no requirement that employees in charge must perform job briefings on site, see R. 36-2, at

136 (requiring only that the employee in charge conduct a job briefing “before they start each job”

or “if significant changes, which might affect the safety of the employees, occur during the work”),

and Brooks’s violation notices accuse him only of failing to conduct a job briefing, with no mention

of the inappropriateness of conducting a job briefing off-site.

        Brooks submitted an affidavit stating that the December 6, 2007 safe practice violation notice

he received from Barker did not cite him for failing to conduct a job briefing. Because his copy of

the notice differs from the copy of the notice submitted by Davey Tree, if the jury believes Brooks’s

testimony, it could infer that the notice was altered after it had been issued, in order to make it appear

as though Brooks had been previously cited for failing to conduct a job briefing. Though Davey Tree

now claims that it fired Brooks for forcing his crew to sign acknowledgments of receiving job


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briefings after the accident occurred, it presents no evidence to support its allegations that the

acknowledgments were false or coerced. Nor does it present any evidence to suggest that Brooks’s

usual practice of directing the crew to sign the job briefing acknowledgments after their first break

violated company policy.

        The testimony from Brice and Price, as to their discussions with Barker following the

accident, if believed by the jury, could also establish pretext. Price testified that he told Barker that

Brooks had held a job briefing on the morning of the accident, yet Barker asked him for a statement

saying that no job briefing had been held. A fair reading of Brice’s testimony reflects that Brice did

not want to sign even the modified statement signed by Price, because he did not believe it to be

accurate, but that Barker made it clear that he would lose his job if he did not do so.

        Brooks submitted sufficient evidence of pretext to survive summary judgment.

                                           CONCLUSION

        For the foregoing reasons, we REVERSE the district court’s judgment and REMAND this

case for further proceedings consistent with this opinion.




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