                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0525n.06

                                           No. 08-3557                                  FILED
                                                                                     Jul 30, 2009
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


DAVID McDERMOTT,                                 )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
CONTINENTAL AIRLINES, INC.,                      )    SOUTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellee.                       )
                                                 )

       Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.*


       SUTTON, Circuit Judge. At stake in this state-law diversity action is whether Continental

Airlines wrongfully discharged David McDermott in retaliation for complaints he made about the

airline or permissibly discharged him because he was not forthcoming or truthful about an accident

at the Port Columbus Terminal. The district court concluded that Continental is entitled to judgment

as a matter of law, and so do we.

                                                 I.

       In August 1989, Continental hired McDermott and he held a variety of positions with the

airline over the next 17 years. He transferred to the Port Columbus Airport in 2002 or early 2003

and worked as a Customer Service Agent in Columbus for the remainder of his employment. During




       *
          The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 08-3557
McDermott v. Continental Airlines

that time, McDermott made at least thirteen safety complaints to Mark Dooley, Continental’s general

manager in Columbus, or to the airline’s Safety Hotline.

       Early on the morning of February 2, 2006, a Continental baggage cart caused “extensive”

damage to a steel door frame, a baggage belt and an overhead baggage carrousel about seven-and-a-

half feet above the floor, ROA 232, rendering America West’s baggage system inoperable. When

contacted about the accident, Dooley agreed to investigate it. After his investigation, Dooley

concluded that McDermott was “not being forthcoming” about his role in the accident, ROA 751,

based on the written statements McDermott gave Dooley about what happened on the night of the

accident, statements provided by other employees working that night and a statement by an America

West employee who implicated McDermott in the incident. Dooley discharged McDermott on

February 15th for not being “truthful or forthcoming during [Dooley’s] investigation,” ROA 248,

and Continental rejected McDermott’s internal appeal.

       McDermott sued Continental in state court, premising his state-law, wrongful-discharge

claim on the ground that the airline fired him for reporting safety violations. Continental removed

the suit to the federal district court based on diversity jurisdiction. See 28 U.S.C. §§ 1332 and 1441.

Continental eventually moved for summary judgment, which the district court granted.

                                                  II.
                                                  A.
       McDermott first challenges the district court’s disposition of his wrongful-discharge claim.

Ohio recognizes a common law tort for wrongful-discharge, which requires the claimant to prove

four things: (1) “[t]hat a clear public policy existed and was manifested in a state or federal


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McDermott v. Continental Airlines

constitution, statute or administrative regulation, or in the common law”; (2) “[t]hat dismissing [the

plaintiff] under circumstances like those involved in [the] dismissal would jeopardize the public

policy”; (3) that the “dismissal was motivated by conduct related to the public policy,” and (4) “[the

defendant] lacked [an] overriding legitimate business justification for the dismissal.” Collins v.

Rizkana, 652 N.E.2d 653, 657–58 (Ohio 1995) (internal citations and alterations omitted). The first

two elements implicate questions of law, and the last two implicate questions of fact. Id. at 658.

       No one disputes that McDermott established the first two elements. McDermott claims that

Continental fired him because he made repeated safety complaints, ROA 18, 22, and dismissing

employees for making workplace-safety complaints “clearly contravenes the public policy of Ohio.”

Pytlinski v. Brocar Prods., Inc., 760 N.E.2d 385, 388 (Ohio 2002); see also Kulch v. Structural

Fibers, Inc., 677 N.E.2d 308, 323–24 (Ohio 1997). That leaves two related questions: (1) whether

McDermott provided sufficient factual support for his allegation that his safety complaints, as

opposed to his unforthcoming and untruthful responses to the investigation of his accident, caused

the discharge and (2) whether Continental had an overriding justification for the discharge—namely,

his involvement in the accident at Port Colombus and his failure to cooperate in the investigation.

        In answering these questions, we will assume, as the parties have assumed, that the Ohio

courts would apply the McDonnell Douglas burden-shifting framework in considering these issues.

See McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). The Ohio courts have embraced this

framework in numerous employment-discrimination contexts, and we think it fair to assume that

they would do the same here. See, e.g., White v Mt. Carmel Med. Ctr., 780 N.E.2d 1054, 1063–64

(Ohio Ct. App. 2002) (statutory workers’ compensation retaliation claims); Kohmescher v. Kroger

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Co., 575 N.E.2d 439, 441–43 (state age-discrimination claims); see also Godfredson v. Hess &

Clark, Inc., 173 F.3d 365, 373–74 (6th Cir. 1999) (granting summary judgment on an Ohio

wrongful-discharge claim where the employee did not establish his employer’s overriding

justification was pretextual); Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348 (6th Cir.

1996) (holding we must “predict” how the Ohio Supreme Court would rule “by looking to all

available data”) (internal quotation marks omitted).

       Under McDonnell Douglas, McDermott may establish retaliation either by introducing direct

evidence of retaliation or by offering circumstantial evidence that supports an inference of

retaliation. See DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir. 2004). McDermott produced no

direct evidence of retaliation, such as a statement from Dooley that he fired McDermott because he

complained about the airline’s safety policies. See Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th

Cir. 2005). He instead presents a circumstantial case—that other evidence permits the inference

that his complaints, not his response to the accident investigation, caused his discharge. To make

out such a case, he must show a causal link between the safety complaints and his discharge, then

Continental must offer a legitimate nondiscriminatory reason for the termination, after which

McDermott must show that the proffered reason is pretextual. See White, 780 N.E.2d 1063–64.

       Causation. McDermott’s efforts to establish a causal link between his safety complaints and

his discharge come up short. First, a jury could not infer causation from Dooley’s firing of Ivan

Soto in 2002. McDermott alleges that, although the official reason Dooley fired Soto was that he

and his family bypassed a security checkpoint while on vacation, the airline in truth fired him



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because he had been “very verbal about the lack of safety” at the airline. Appellant’s Br. at 23. But

the gap in time between Soto’s discharge and McDermott’s discharge undermines this argument.

       In the age-discrimination context, the Ohio Supreme Court has made it clear that “there is

no permissible inference that the employer was motivated” by improper considerations absent a

causal link between the allegedly improper conduct and the plaintiff. Byrnes v. LCI Comm.

Holdings Co., 672 N.E.2d 145, 149 (Ohio 1996). Byrnes held that multiple statements suggesting

animus towards older workers over a four-year period prior to the plaintiffs’ termination were too

“distant in time and in fact” to support such a causal link. Id. at 148. The most recent statement

had been made more than a year before the terminations at issue and related to other employees.

Id.

       The same problem exists here: Too much distance in time separates the Soto and

McDermott incidents to draw any meaningful inferences between them. Dooley fired Soto almost

four years before he fired McDermott, and McDermott has not identified any causal link between

the two firings. The two discharges did not arise out of the same series or set of events, and the

circumstances surrounding the two discharges have little in common.

       Relying on Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998),

McDermott persists that “circumstantial evidence establishing the existence of a discriminatory

atmosphere at [Continental’s] workplace in turn may serve as circumstantial evidence of

individualized discrimination directed at” McDermott. But Ercegovich cannot carry the weight that

McDermott places on it. The circumstantial evidence in Ercegovich consisted of discriminatory

remarks that the parties could address through brief witness testimony. See id. Addressing Soto’s

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termination, by contrast, would require litigating an entire wrongful discharge claim. See Williams

v. Nashville Network, 132 F.3d 1123, 1130 (6th Cir. 1997) (affirming exclusion of evidence that

would have led to a mini-trial about why a different employee was not hired). Ercegovich also

involved “numerous age-biased statements allegedly made by several individuals occupying”

management positions, 154 F.3d at 354, which suggested that a discriminatory atmosphere pervaded

Goodyear. McDermott’s focus on one incident four years earlier does not suggest an equally

pervasive atmosphere. It instead is analogous to an “isolated and ambiguous comment[]” that is

“too abstract, in addition to being irrelevant[,] . . . to support a finding” against Continental. Id. at

355 (internal quotation marks omitted).

        Second, McDermott cannot create a genuine issue of material fact by identifying two

derogatory comments that Dooley made to McDermott. Dooley told McDermott that he “was

making smart-ass remarks on the radio,” ROA 540, after McDermott refused to place an

unaccompanied, checked bag in a plane’s cabin because it allegedly violated FAA and TSA

regulations. Dooley also stated “every time you come in here to complain about [a specific co-

worker], it’s like you’re bringing a shotgun in here and complaining,” ROA 593, when McDermott

reported a safety concern. But the remarks go to Dooley’s objection about how McDermott

communicated his safety complaints, not to the content of the safety remarks. See Phelps v. Yale

Sec., Inc., 986 F.2d 1020, 1025–26 (6th Cir. 1993).

        Moreover, Dooley’s two remarks, even if taken as responses to the content of McDermott’s

complaints, are too isolated to support a cognizable case of causation given that they occurred over

a three-year period when McDermott, as he acknowledges, was “[c]onstantly,” ROA 757, reporting

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safety issues to Dooley. The first remark also was not sufficiently “proximate in time to the act of

termination,” Conway v. Paisley House, No. 02CA135, 2003 WL 22038192, at *4 (Ohio Ct. App.

Aug. 28, 2003), as it occurred roughly a year before McDermott was terminated. See Phelps, 986

F.2d at 1026 (holding comments “made . . . nearly a year” before a termination “were made too long

before the layoff to have influenced the termination decision.”). And McDermott has not shown

when the second remark was made. At any rate, he has “presented no evidence to place the alleged

remark[s] in the context of any employment decision.” Hershberger v. Altercare, Inc., No.

2006CA00167, 2007 WL 926476, at *9 (Ohio Ct. App. Mar. 26, 2007). Ohio courts have made it

clear that stray remarks, unrelated to the decision-making process at issue, are insufficient even

when “the decision-maker is the one making the comment.” Brewer v. Cleveland City Schs. Bd.

of Educ., 701 N.E.2d 1023, 1027 (Ohio Ct. App. 1997).

       Third, a jury could not infer causation based on the bare fact that McDermott made

numerous safety complaints. McDermott has not produced any evidence establishing a causal link

between his complaints and his discharge other than his own opinion that Dooley “wanted me fired

because I reported those safety violations,” ROA 390, and the opinion of a co-worker that Dooley

retaliated against McDermott for “report[ing] safety concerns,” ROA 770. But unelaborated and

unsubstantiated conclusions, whether offered by the employee himself or by a co-worker who did

not participate in the decision-making process, do not create the necessary causal link. Atkinson




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v. Akron Bd. of Educ., No. 22805, 2006 WL 551551, at *8 (Ohio Ct. App. Mar. 8, 2006); see also

Haley v. Gen. Elec. Co., 3 F. App’x 240, 248 (6th Cir. 2001) (“[M]ere opinions expressed by co-

workers who have no direct involvement in the decision-making process have no probative

value. . . .”).

         McDermott counters that a jury could infer causation from the temporal proximity between

McDermott’s call to Continental’s Safety Hotline in September of 2005 and his termination four

months later. Dooley had previously asked employees not to call the Hotline—or at least to contact

him first before doing so—and learned on September 23, 2005 that McDermott had called the

Hotline three days earlier. But nothing in the record suggests he was upset by the call. And

temporal proximity alone will not support an inference of retaliatory discrimination unless an

employee is “unable to couple temporal proximity with any . . . other evidence of retaliation because

the” protected conduct and the termination “happened consecutively . . . .” Mickey v. Zeidler Tool

& Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (suggesting the termination must be "swift[] and

immediate[]").

         McDermott’s case citations are not to the contrary. In addition to the temporal proximity

between his complaint and termination, the plaintiff in Little v. BP Exploration & Oil Co. presented

other evidence of retaliation, including threats against co-workers if they did not manufacture

infractions by the plaintiff. 265 F.3d 357, 365 (6th Cir. 2001). The claimant in Moore v. KUKA

Welding Sys. & Robot Corp. likewise had other evidence to support his claim (besides the fact that

three months had elapsed between the complaint and his discharge), namely that he was subject to



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increased “disciplinary writeups” and “unwarranted criticism” after filing his complaint. 171 F.3d

1073, 1080 (6th Cir. 1999).

       Overriding Justification. But even if McDermott could establish a causal link between his

safety complaints and his discharge, he still has not shown that Continental did not have an

overriding justification—namely, McDermott’s lack of candor during the airline’s own safety

investigation into his accident with the baggage cart—for its employment decision. As permitted

under McDonnell Douglas, McDermott tries to show that Continental’s claimed reason for the

discharge was pretextual. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th

Cir. 1994). But, once again, he falls short.

       First, he argues that Continental’s stated reason for terminating him “has no basis in fact.”

Id. (internal quotation marks and emphasis omitted). To succeed, McDermott must show that

Dooley did not honestly believe McDermott was less than forthcoming during the investigation,

which turns on whether Dooley made a “reasonably informed and considered decision.” Smith v.

Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998).

       Here is what Dooley knew and what he relied upon: McDermott was one of the employees

running bags between the planes and baggage claim that night; at least two Continental employees

identified McDermott as the bag runner at the time of the accident; and an America West employee,

Dennis McKee, identified McDermott as the Continental employee in the baggage makeup area

immediately after hearing and feeling a loud noise originating from that area. Dooley also knew

that McDermott experienced debilitating chest pains the night of the accident but did not report an

on-the-job injury and that McDermott gave several vague and evasive answers regarding his

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knowledge of, and possible involvement in, the accident. All of these facts support the conclusion

that Dooley’s decision was reasonably informed and considered.

       Resisting this conclusion, McDermott first alleges that Dooley fabricated parts of the

investigation reports. But we require specific facts, not allegations, at the summary judgment stage,

see Henry v. Wausau Bus. Ins. Co., 351 F.3d 710, 713 (6th Cir. 2003), and McDermott has no

factual support to back up this (serious) allegation. More, none of the witnesses who signed the

documents included in the investigation reports, including those present at McDermott’s request,

submitted an affidavit alleging the documents were later falsified or otherwise untrue.

       McDermott separately argues that a proper, non-pretextual investigation would have used

a different process to confirm the identify of the Continental employee seen by McKee, would not

have relied on an allegedly suspect statement from a Continental employee and would have

questioned McDermott about the accident differently. But we do not require “optimal” processes,

and these alleged errors are not “too obvious to be unintentional” or otherwise render the

investigation “unworthy of credence.” Smith, 155 F.3d at 807–08 (internal quotation marks

omitted).

       McDermott also argues that Dooley knew McDermott lacked any motivation to lie about

the accident, making Dooley’s honest belief subject to genuine dispute. But this consideration,

standing alone, could not show by a preponderance of the evidence that Dooley lacked an honest

belief in the face of the litany of facts indicating that Dooley’s decision was reasonably informed

and considered. See Manzer, 29 F.3d at 1083 (“The jury may not reject an employer’s explanation

. . . unless there is a sufficient basis in the evidence for doing so.”) (emphasis omitted).

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McDermott v. Continental Airlines

       Second, McDermott argues his circumstantial evidence creates a material factual dispute

about whether Dooley’s stated justification actually motivated McDermott’s termination. See id.

at 1084. To succeed on this ground, the sheer weight of the circumstantial evidence of retaliation

must make it more likely than not that Dooley’s justification is pretextual. Imwalle v. Reliance

Med. Prods., Inc., 515 F.3d 531, 547 (6th Cir. 2008). As the discussion of causation shows, a jury

could not infer from McDermott’s circumstantial evidence that his safety complaints, not his

dishonesty, motivated his termination. At best, McDermott “only created a weak issue of fact as

to whether [Continental’s] reason was untrue.” Abdulnour v. Campbell Soup Supply Co., LLC, 502

F.3d 496, 504 (6th Cir. 2007) (internal citation omitted). When weighed against the “ample

evidence” supporting Continental’s position, that weak issue of fact is insufficient to avoid

summary judgment. See id.

       Third, McDermott argues his failure to report the accident and cooperate in the investigation

is insufficient to explain Continental’s termination decision. This Manzer prong “ordinarily

consists of evidence that other employees . . . were not fired even though they engaged in

substantially identical conduct.” Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 600 (6th

Cir. 2001) (internal citation omitted); see also Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th

Cir. 2000) (“[T]he individuals . . . must have dealt with the same supervisor.”) (internal quotation

marks omitted). The most similarly situated employee McDermott identifies is Dave Catt, who

backed a van into a lightpole, failed to report it and was not terminated. Nothing, however,

indicates Catt was not forthcoming during the investigation, so he did not engage in substantially

identical conduct. That Continental did not terminate employees who caused far greater damage

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is similarly irrelevant. Continental terminated McDermott for being less than forthcoming during

the accident investigation, not for the amount of damage he caused. Absent any similarly situated

employee receiving different treatment, McDermott cannot survive summary judgment under this

prong or on his claims of pretext generally.

       McDermott alternatively argues that the overriding-justification element is an affirmative

defense so we cannot award summary judgment in Continental’s favor even if he failed to create

a material factual dispute under this element. He is wrong in at least two respects. Ohio courts have

consistently held that the employee is “required to prove four elements,” including that the

“employer lacked an overriding legitimate business justification.” Browning v. Ohio State Hwy.

Patrol, 786 N.E.2d 94, 104 (Ohio Ct. App. 2003). But even if this element were an affirmative

defense, Continental has alleged an overriding justification, and summary judgment is appropriate

when the moving party has established an uncontroverted affirmative defense. See Thornton v. Fed.

Express Corp., 530 F.3d 451, 457–58 (6th Cir. 2008).

                                                 B.

       McDermott separately argues that the district court abused its discretion in denying his

motion to compel discovery, which (he claims) would have helped remedy the factual deficiencies

in his opposition to Continental’s motion for summary judgment. We disagree.

       In his motion to compel, McDermott asked for all documents relating to company-wide

accident investigations and disciplinary proceedings in the last five years involving employees that

the airline had deemed untruthful. He also sought documents regarding all Continental accident

investigations in Ohio and all “disciplinary actions taken against any employee in connection with

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McDermott v. Continental Airlines

any accident investigation conducted in Ohio.” ROA 117. Finding the requests overly broad, the

district court limited discovery to accidents in Columbus “during the last five years in which an

employee has been determined to be untruthful,” including any disciplinary actions taken. ROA

117.

           The district court did not abuse its discretion in limiting McDermott’s discovery request in

this way. The court had ample justification for confining discovery to the Columbus airport:

“Where, as here, the employment decisions were made locally, discovery may be properly limited

to the employing unit.” Scales v. J.C. Bradford and Co., 925 F.2d 901, 907 (6th Cir. 1991). The

“employing unit” in this instance was the Columbus terminal because Dooley made the discharge

decision and because McDermott focused his allegations on Dooley’s attitude towards safety and

on how he conducted the accident investigation. See id. at 906–07 (limiting discovery to the local

office where “[t]he focus of plaintiff’s complaint was on the treatment she received” by the local

office).

           The district court also acted well within its discretion in confining discovery to

investigations where employees were considered “untruthful.” Although McDermott maintains that

he needed broader discovery to prove pretext by showing similarly situated employees were not

terminated, his request would have covered every employee interviewed as part of an accident

investigation because they were all “subject to some degree of scrutiny for possibly lying or

concealing information.” Appellant’s Br. at 57. McDermott cites no legal authority to support this

novel definition of “similarly situated,” and he has not cited any authority to suggest that a district

court abuses its “broad discretion in matters of discovery,” John B. v. Goetz, 531 F.3d 448, 458 (6th

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Cir. 2008), by limiting discovery to the most similarly situated individuals—as opposed to any

employee in a large company remotely comparably situated. No abuse of discretion occurred.

       McDermott, at any rate, filed his motion to compel without ever submitting his requests to

Continental, and that too supports the district court’s decision. Under the Federal Rules of Civil

Procedure, McDermott could “move for an order compelling . . . production” only if Continental

failed to produce documents “requested under Rule 34.” Fed R. Civ. P. 37(a)(3)(B); see also

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310 (3d Cir. 1995) (“[A] party must first prove

that it sought discovery from its opponent” to succeed on a motion to compel). Because McDermott

did not satisfy this threshold requirement for filing a motion to compel, the district court did not

abuse—indeed could not have abused—its discretion in denying the motion. See Petrucelli, 46 F.3d

at 1311.

                                                III.

       For these reasons, we affirm.




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