                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0247n.06

                                           No. 19-1329

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   May 04, 2020
 AUBREY LYONS,                       )                                         DEBORAH S. HUNT, Clerk
                                     )
         Plaintiff-Appellant,
                                     )
                                     )
 v.                                                              ON APPEAL FROM THE
                                     )
                                                                 UNITED STATES DISTRICT
 MICHIGAN DEPARTMENT OF CORRECTIONS, )                           COURT FOR THE EASTERN
 et al.,                             )
                                                                 DISTRICT OF MICHIGAN
                                     )
         Defendants-Appellees.       )
                                     )


BEFORE: SILER, GIBBONS, and THAPAR, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge.                Aubrey Lyons, an African American

correctional officer with the Michigan Department of Corrections (“MDOC”), appeals the district

court’s grant of summary judgment to MDOC on his Title VII disparate treatment and retaliation

claims. Lyons claims MDOC issued him a one-day suspension for being inattentive to duty, while

it did not discipline similarly situated white officers. Moreover, he claims his MDOC supervisors

issued that discipline in retaliation for several discrimination complaints Lyons previously filed

against MDOC.

       First, Lyons failed to establish a prima facie case of disparate treatment. He forfeited his

argument that his one-day suspension, which was eventually reduced to a written reprimand,

constituted an adverse employment action by failing to raise it in his opening brief. Second, Lyons

failed to establish a prima facie case of retaliation. He did not demonstrate that the decision maker

who issued his one-day suspension for being inattentive to duty knew about his discrimination
No. 19-1329, Lyons v. MDOC


complaints, and Lyons forfeited his “cat’s paw” theory of liability by not raising it before the

district court. Therefore, we affirm.

                                                           I.

           Aubrey Lyons is an African American correctional officer employed by MDOC since

1997. After being transferred in 2012 to the Macomb Correctional Facility (“Macomb”), Lyons

allegedly began to experience various incidents of discrimination by his white supervisors.

           Lyons filed his first internal discrimination complaint against MDOC in January 2015 in

response to MDOC’s disciplining him for violating its computer use policies. Lyons claimed the

white investigating lieutenant, James Webster, “singled [him] out” by monitoring his computer

activity but not the activity of white staff. DE 34-5, Discriminatory Harassment Reporting Form

Jan. 12, 2015, PageID 699. In his deposition, Lyons testified that other officers came to know

about his complaint against Webster, as it was “common knowledge.” DE 31-1, Lyons Dep.,

PageID 306; DE 34-4, Lyons Dep., PageID 664, 684.

           In August 2015, Lyons filed another internal discrimination complaint against MDOC, this

time regarding disparate treatment at a gun range. Lyons’s white supervisor, Sergeant Robert

Loxton, denied Lyons use of the gun range for recertification while Loxton, around the same time,

allowed a white officer immediate use of the range. MDOC’s subsequent investigation concluded

that the incident was not racially motivated but rather a result of Loxton’s poor communication.

In October 2015, Lyons filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) regarding the gun range incident.1

           Lyons presents some evidence that other officers, particularly Captain Dale Holcomb and

Lieutenant Gary Kelly, knew about his complaints. Holcomb testified that he did not have “first-



1
    The EEOC dismissed the charge, allowing Lyons to file suit in court.

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No. 19-1329, Lyons v. MDOC


hand knowledge” of Lyons’s complaints, but he heard “scuttle or rumor[s]” regarding

discrimination complaints generally. DE 34-7, Holcomb Dep., PageID 735. Holcomb and Kelly

were also friends with Loxton.

       On December 18, 2015, Holcomb referred Lyons for investigation for being inattentive to

duty earlier that morning, a Work Rule 32 violation. Holcomb and Kelly were conducting their

rounds when, at 2:53 a.m., they observed Lyons sitting in a guard shack “with his eyes closed,

motionless[,] and his head down.” DE 31-11, Attention to Duty Discipline Apr. 20, 2016, PageID

544, 548. “Kelly walked up to the yard shack, looked in,” and knocked “before [Lyons] lifted his

head up.” Id. at 545.      Lyons concedes that his head was down when Kelly and Holcomb

approached, but claims he was adjusting his radio. Given that it was dark inside the shack, Lyons

acknowledged that Kelly “may have thought [he] was inattentive.” Id. at 552. Lyons’s disciplinary

report stated that he was “observed on video” with his eyes closed and head down. Id. at 537.

Soon after the incident, on January 7, 2016, Lyons filed an EEOC complaint alleging that he was

being retaliated against for filing discrimination complaints.

       Following an investigation into the guard shack incident, MDOC Discipline Coordinator

Jennifer Nanasy issued Lyons a one-day suspension on May 18, 2016, for being inattentive to duty.

Nanasy said that she relied on Kelly’s and Holcomb’s representations as well as the video evidence

to conclude by a preponderance of evidence that Lyons was inattentive. She noted, however, that

the video footage was too dark to show details of Lyons’s positioning or his eyes, and that she

“would take [Holcomb and Kelly] at their word.” DE 34-9, Nanasy Dep., PageID 761–62. She

did not ask Lyons any questions regarding his defense that he was looking down at his radio. After

Lyons filed a grievance, the one-day suspension was reduced to written counseling approximately

six months after it was issued.



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No. 19-1329, Lyons v. MDOC


       The same night of Lyons’s guard shack incident, around 3:25 a.m., Holcomb and Kelly

found a white correctional officer, Kurt Heinrich, similarly inattentive to duty. Holcomb and Kelly

observed Heinrich sitting at a podium “with his head down, motionless, and with his eyes closed.”

DE 31-14, Heinrich Attention to Duty Discipline Mar. 9, 2016, PageID 562. During the initial

part of the investigation, Heinrich called the accusations “petty” and expressed his belief that

MDOC has a practice of finding a “token” white officer to discipline in order to avoid charges of

racial discrimination, but he added that this was merely “speculat[ion].” Id. at 563. Heinrich, who

had no prior discipline, subsequently admitted responsibility, entered a settlement agreement, and

Nanasy issued him written counseling.

       On April 25, 2017, Lyons filed a lawsuit alleging claims under Title VII and 42 U.S.C.

§ 1983. Under Title VII, Lyons brought claims of disparate treatment, retaliation, and hostile work

environment against MDOC. He also alleged equal protection, substantive due process, free

speech, and municipal liability claims under § 1983.        The defendants moved for summary

judgment. The district court heard argument on the motion and orally dismissed all of Lyons’s

claims except for his Title VII retaliation claim, which it later dismissed in a written order. Lyons

filed a timely notice of appeal. On appeal, Lyons only challenges the district court’s dismissals of

his disparate treatment and retaliation claims stemming from the guard shack inattentive to duty

incident.

                                                 II.

       “We review a district court’s grant of summary judgment de novo.” Michael v. Caterpillar

Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007). Summary judgment is proper where the

record, viewed in the light most favorable to the nonmoving party, indicates there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.



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No. 19-1329, Lyons v. MDOC


P. 56(a). A genuine issue of material fact exists when “there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).

       In employment discrimination cases without any direct evidence of discrimination, the

McDonnell Douglas burden-shifting framework applies. Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 252 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Seay

v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2001). Under this three-part framework, a

plaintiff must first establish a prima facie case of discrimination, “which creates an inference of

discrimination based on circumstantial evidence.” Seay, 339 F.3d at 463. The burden then shifts

to the employer to offer some “legitimate, nondiscriminatory reason” for the adverse action. Id.

The plaintiff must then prove by a preponderance of evidence that the reasons the employer offers

are pretext for discrimination. Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001).

Lyons challenges the district court’s ruling that he failed to establish a prima facie case for both

his disparate treatment and retaliation claims. For the following reasons, we affirm.

                                                A.

       To establish a prima facie case of disparate treatment in employee discipline, a plaintiff

must demonstrate that: “1) he is a member of a protected class; 2) [he] was qualified for the job;

3) he suffered an adverse employment decision; and 4) [he] was . . . treated differently than

similarly situated non-protected employees.” Arendale v. City of Memphis, 519 F.3d 587, 603 (6th

Cir. 2008) (quoting Newman, 266 F.3d at 406). The first two elements are not disputed. The third

and the fourth elements are disputed, but, on appeal, Lyons only challenges the district court’s

conclusion that he failed to satisfy the fourth element. He points to white employees, including

Heinrich, whom he alleges received lighter punishments for the same rule violation, as evidence



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No. 19-1329, Lyons v. MDOC


of similarly situated non-protected employees who were treated differently. We do not need to

resolve this issue because we find that Lyons forfeited any argument regarding the third element—

adverse employment decision—and therefore his disparate treatment claim fails.

       Lyons failed to address the third element regarding an adverse employment decision in his

opening brief because he erroneously assumed that the district court concluded in his favor on that

element. The district court did not rule on whether Lyons suffered an adverse employment

decision—it avoided the issue by deciding that Lyons failed on the fourth element. Lyons argues

that the one-day suspension MDOC imposed for the guard shack incident (which was later reduced

to a written reprimand) constitutes an adverse employment action, but on appeal he raises this

argument for the first time in his reply brief.

       Because Lyons did not argue that he suffered an adverse employment action in his opening

brief, we conclude that Lyons forfeited the argument. See United States v. Campbell, 279 F.3d

392, 401 (6th Cir. 2002) (finding that a plaintiff forfeited an issue that he included in his reply

brief but failed to raise in his original brief); United States v. Crozier, 259 F.3d 503, 517 (6th Cir.

2001) (“[T]he appellant cannot raise new issues in a reply brief; he can only respond to arguments

raised for the first time in appellee’s brief.” (quoting United States v. Jerkins, 871 F.2d 598, 602

n.3 (6th Cir. 1989))). The defendants were not able to respond to the merits of the argument Lyons

raised for the first time in his reply brief, and we decline to resolve this issue that was not fully

briefed. Therefore, we affirm the district court’s grant of summary judgment to MDOC on the

disparate treatment claim.

                                                  B.

       Lyons also challenges the district court’s dismissal of his retaliation claim against MDOC

for imposing discipline based on his inattention to duty. “Title VII prohibits discriminating against



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No. 19-1329, Lyons v. MDOC


an employee because that employee has engaged in conduct protected by Title VII.” Laster v. City

of Kalamazoo, 746 F.3d 714, 729 (6th Cir. 2014). The McDonnell Douglas burden-shifting

framework also applies to retaliation claims, first requiring the plaintiff to make a prima facie

showing of retaliation. EEOC v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015). In

order to establish a prima facie case of retaliation, a plaintiff needs to satisfy four elements: (1) the

plaintiff engaged in legally protected activity; (2) the defendant knew about the plaintiff’s

protected activity; (3) the defendant then took an action materially adverse to the plaintiff; and

(4) the protected activity and the adverse employment action were causally connected. Laster,

746 F.3d at 730; Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

        The parties do not dispute the first and third elements. First, Lyons engaged in legally

protected activity when he filed his various internal and EEOC discrimination complaints. See

Laster, 746 F.3d at 730. Second, the one-day suspension Nanasy issued Lyons satisfied the low

bar for a materially adverse action in the retaliation context because he presented evidence that

such discipline on a correctional officer’s record, even when later reduced to a written reprimand,

makes transfers and other opportunities more difficult for the officer. See Michael, 496 F.3d at

595 (noting that “a plaintiff’s burden of establishing a materially adverse employment action is

less onerous in the retaliation context than in the anti-discrimination context” and “[a] materially

adverse employment action in the retaliation context consists of any action that ‘well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination’” (quoting

Burlington, 548 U.S. at 67–68)). The district court found Lyons did not provide evidence of a

prima facie case of retaliation because he did not satisfy the second element—that Nanasy knew

about Lyons’s protected conduct. The district court did not reach the causation element.




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No. 19-1329, Lyons v. MDOC


        The district court correctly concluded that Lyons’s retaliation claim fails because he did

not present evidence that Nanasy, the final decision maker in Lyons’s inattentive to duty discipline,

knew about any of his discrimination complaints when she issued his one-day suspension. See

New Breed Logistics, 783 F.3d at 1068–69 (assessing the knowledge element by considering

whether the plaintiff showed evidence “that the relevant decision makers knew of any alleged

protected activity when they took adverse action”). MDOC’s general practice was to keep the

identity of discrimination complainants confidential, and Nanasy testified at her deposition that

she was unaware of Lyons’s discrimination complaints. Her affidavit further provided that she

was “neither friends nor acquainted with” any of Lyons’s named supervisors who might have

otherwise informed her of the complaints. DE 36-1, Nanasy Aff., PageID 804; see also Hicks v.

SSP Am., Inc., 490 F. App’x 781, 785 (6th Cir. 2012) (“Knowledge of a plaintiff’s protected

activity can be inferred from evidence of the prior interaction of individuals with such knowledge

and those taking the adverse employment action.” (quoting Mulhall v. Ashcroft, 287 F.3d 543, 553

(6th Cir. 2002))). Lyons does not rebut this evidence and therefore fails to create a dispute of fact

as to Nanasy’s knowledge of his protected activity. Without this knowledge, Lyons’s protected

activity could not have been the cause of Nanasy’s decision to discipline him.

        Lyons argues that, although Nanasy did not know of his protected activity, the “cat’s paw”

theory of liability salvages his claim.2 “When an adverse hiring decision is made by a supervisor

who lacks impermissible bias, but that supervisor was influenced by another individual who was

motivated by such bias, this [c]ourt has held that the employer may be held liable under a . . . ‘cat’s

paw’ theory of liability.” Arendale, 519 F.3d at 604 n.13; see also Roberts v. Principi, 283 F.


2
  Lyons also cites to Hopkins v. Michigan, No. 17-12261, 2018 WL 6046166 (E.D. Mich. Nov. 19, 2018). There, the
district court allowed an assumption that MDOC and the warden of the facility were aware of the EEOC complaint.
Id. at *14. However, that case has no bearing here where the warden is not a defendant in the retaliation claim and
there is no evidence that Nanasy knew about Lyons’s discrimination complaints. Lyons’s claims are distinguishable.

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No. 19-1329, Lyons v. MDOC


App’x 325, 333 (6th Cir. 2008) (“In the employment discrimination context, ‘cat’s paw’ refers to

a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal

decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”

(quoting EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006))). Lyons

argues that Holcomb and Kelly “took actions intended to cause the adverse employment action

against [him]” by “launch[ing] an investigation against [him]” for being allegedly inattentive at

duty and providing testimony in support of his discipline. CA6 R. 17, Appellant Br., at 25.

       But Lyons raises this argument for the first time on appeal; he did not present it to the

district court. Notably, Lyons completely failed to mention Nanasy in his discussion of the

retaliation claim. An argument not raised before the district court is generally forfeited on

appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). We occasionally

deviate from the general rule in exceptional circumstances or when failing to address the argument

would produce a plain miscarriage of justice. Foster v. Barilow, 6 F.3d 405, 407 (6th Cir.

1993). In past cases, we have used the following factors to aid in determining whether to consider

a forfeited claim:

       1) whether the issue newly raised on appeal is a question of law, or whether it
       requires or necessitates a determination of facts; 2) whether the proper resolution
       of the new issue is clear and beyond doubt; 3) whether failure to take up the issue
       for the first time on appeal will result in a miscarriage of justice or a denial of
       substantial justice; and 4) the parties’ right under our judicial system to have the
       issues in their suit considered by both a district judge and an appellate court.

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615 (6th Cir. 2014) (quoting Friendly Farms

v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996)). Ultimately, “[t]he matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to the discretion of




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No. 19-1329, Lyons v. MDOC


the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S.

106, 121 (1976).

        We conclude that Lyons forfeited his cat’s paw liability argument. None of the four factors

compel addressing the merits of the argument for the first time on appeal, and the first two factors

strongly weigh against doing so. The inquiry is largely fact-based, requiring this court to assess

whether the defendants were motivated by retaliatory animus and determine whether Lyons has

shown but-for causation. The resolution of this issue, moreover, is not clear or beyond doubt. See

Hayward, 759 F.3d at 615 (declining to hear an issue not raised below, in part, because “it [was]

not an issue for which resolution [was] clear beyond doubt”). Therefore, we find that Lyons failed

to establish a prima facie case of retaliation.

                                                  III.
        Because Lyons forfeited essential arguments related to his disparate treatment and

retaliation claims on appeal, we affirm the district court’s dismissal of both claims.




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