                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 06a0850n.06
                              Filed: November 20, 2006

                                          No. 05-6330


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

DARRYL HAUGHTON,

       Plaintiff-Appellant,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
ORCHID AUTOMATION,                                  MIDDLE DISTRICT OF TENNESSEE

       Defendant-Appellee.

                                              /




BEFORE:        CLAY and ROGERS, Circuit Judges; KATZ, District Judge.*

       CLAY, Circuit Judge. Plaintiff-Appellant, Darryl Haughton, appeals from the district

court’s grant of summary judgment to Defendant-Appellee, Orchid Automation, on his claim that

Defendant-Appellee discriminated against him on the basis of race in violation of Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e and 42 U.S.C. § 1981. For the reasons that follow, we

AFFIRM.

                                       BACKGROUND

       A.      Substantive Facts


       *
        The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
                                           No. 05-6330

       Plaintiff, Darryl Haughton, began working for Defendant, Orchid Automation, as a temporary

employee at its Gordonsville, Tennessee assembly plant in January 2000. During Plaintiff’s nine

weeks as a temporary employee, he worked the second shift as an assembly worker at Defendant’s

plant. After working three weeks at the plant, Plaintiff interviewed with Defendant’s Production

Manager, Ron Hall, and Director of Operations, Craig Woodard, for the position of Team Leader.

Defendant considered approximately six candidates for this position and ultimately offered the

position to Plaintiff in a letter dated February 17, 2000. Plaintiff began working full-time as Team

Leader of the first shift on February 21, 2000.

       As Team Leader, Plaintiff “supervised a shift of assembly workers,” and had responsibility

“for producing quality parts, helping employees produce quality parts, ensuring a safe work

environment, and ensuring productivity.” (J.A. at 255-56) In turn, Production Manager Hall directly

supervised Plaintiff. By all accounts, Defendant’s managerial staff – including the Plant Manager,

Production Manager, and Director of Operations – “considered Plaintiff to be a ‘very good

employee’” until September 15, 2001. (J.A. at 256) Also prior to that date, Defendant received no

complaints about Plaintiff, nor had Plaintiff’s subordinates expressed concerns over working with

him. Additionally, Plaintiff reported a positive working relationship with Hall. He indicated that

Hall had generally been supportive, and specifically had been integral in promoting Plaintiff to Team

Leader and securing a pay increase for Plaintiff.

       On September 15, 2001, two of Plaintiff’s subordinates – Teresa Craighead (“Craighead”)

and Wanda Haney (“Haney”) – called Production Manager Hall at home. At the time they placed

the call, the first shift that day had not yet completed its work. Craighead and Haney “were very


                                                    2
                                            No. 05-6330

upset” and reported that Plaintiff had “given them a cussing,” had “called them certain things,” and

“had been mouthing around.”1 (J.A. at 257) According to Craighead and Haney, when they asked

Plaintiff to bring them a part, Plaintiff responded: “Can’t you see I’m fucking busy” and “I’m tired

of those stupid bitches tell [sic] me when I need to get them.”2 (J.A. at 258) Plaintiff admitted that

he yelled at Craighead and Haney that day and said he “wasn’t going to get their parts no damn faster

than [he] could bring them.” (J.A. at 260, 275) Plaintiff denied using any other inappropriate

language.

       Because Production Manager Hall anticipated an absence from the office Monday morning,

he instructed Craighead and Haney to meet with Plant Manager Powers upon arrival at work that

morning. Hall further assured Craighead and Haney that the management would “get to the bottom

of their concerns.” (J.A. at 259) Additionally, Hall contacted Powers to inform him of the situation

and suggested that Defendant investigate the allegations against Plaintiff.

       On Monday, September 17, 2001, Powers initiated an investigation into the complaints

against Plaintiff, directing Hall to work with Norma McClard, the Administrative Assistant at the

plant, to question witnesses. The investigation began with interviews of employees who were

present during the first shift that Saturday when the alleged incident occurred. These interviews




       1
        Plaintiff denied this in his Response to Defendant’s Statement of Undisputed Material Facts,
and objected on hearsay grounds. The district court found the statements were “offered to show
[Defendant’s] state of mind and motive, rather than the truth of the matter asserted” and
consequently were “not hearsay statements.” (J.A. at 25)
       2
           See supra, note 1.

                                                  3
                                            No. 05-6330

spanned two days, and Plaintiff was not present while they were conducted.3 Craighead and Haney

made a joint statement. Therein, they indicated that Plaintiff responded to their request for parts by

saying: “I heard you the fucking first time, I’m not fucking deaf. And I said stop, fucking dumb

asses.” (J.A. at 198-99, 263) Plaintiff then reportedly repeated “Bring me the fucking rails, bring

me the fucking rails.” (J.A. at 198-99, 263) Craighead and Haney further stated that they frequently

heard Plaintiff threaten to “call the NAACP if the damn fucking people in the office fire him.” (J.A.

at 198-99, 263)

       Additionally, Plaintiff’s other subordinates reported hearing Plaintiff “curse and raise his

voice at Craighead and Haney,” and that Plaintiff called the two “dumb assess” and “stupid bitches.”

(J.A. at 261) Several employees requested a switch in shift as a result of Plaintiff’s conduct. Some

of these employees had previously requested shift changes citing personal reasons, but admitted

during their interviews with management that “they felt intimidated by Plaintiff and the treatment

that they received from him,” and felt he could cause them to be fired. (J.A. at 262) In addition to

corroborating Craighead and Haney’s claims,4 these employees reported additional instances of

verbal harassment and threatening behavior on Plaintiff’s part spanning several months. Moreover,


       3
        Plaintiff also disputes the Defendant’s statement of facts insofar as it recounts the comments
of employees interviewed on September 17 and 18, 2001, which Plaintiff again argues are
inadmissible hearsay. The district court also ruled these statements admissible as non-hearsay. See
supra, note 1.
       4
         Specifically, witness statements reflect that, during the September 15, 2001 incident,
Plaintiff used the words “fucking dumb ass,” (J.A. at 200), that he was “cussing,” (J.A. at 201), that
he said “fucking” and “damn,” (J.A. at 204), that he “hasn’t cussed [Craighead and Haney] until
Saturday,” (J.A. at 205), and that he stated he would “get the rails when he was good fucking ready.
Some people need to keep their damn mouth shut. I hold everyone’s job in my hands.” (J.A. at 206)


                                                  4
                                            No. 05-6330

they indicated that Plaintiff had, from time to time, falsified time cards of subordinates who “minded

him” so they wouldn’t be marked late to work, and with employees who did not “mind him,” they

said that Plaintiff simply allowed them to incur points for absenteeism. (J.A. at 266-67)

       During the investigation, Hall and McClard also interviewed Plaintiff. Their meeting with

Plaintiff lasted twenty to thirty minutes. It is undisputed that, at that meeting, Hall questioned

Plaintiff about the September 15, 2001 incident and that “Plaintiff felt like he had an opportunity to

tell his side of the story.” (J.A. at 269) Pending the completion of the investigation, Defendant

placed Plaintiff on leave with pay beginning Monday, September 17, 2001.

       Two days later, on September 19, 2001, Plant Manager Powers and Production Manager Hall

arranged to meet Plaintiff and, at that time, gave Plaintiff a second chance to “tell his side of the

story.” Plaintiff again denied the allegations his subordinates lodged against him, but went on to say

he would “move to third shift or take a demotion back to the assembly line.” (J.A. at 271) Plaintiff

further offered to apologize to his subordinates. Nevertheless, throughout the meeting, Plaintiff

maintained he had done nothing wrong.

       After this meeting, Powers and Hall met with Director of Operations Woodard to review the

results of the investigation and their meetings with Plaintiff. They jointly decided to terminate

Plaintiff’s employment and, on Friday, September 21, 2001, Hall spoke with Plaintiff to inform him

of their decision. Powers and Hall later indicated they did not believe Plaintiff had been forthcoming

during the investigation. Defendant did not immediately replace Plaintiff and, for some time, the




                                                  5
                                            No. 05-6330

first shift operated without a Team Leader. Ultimately, Defendant found it necessary to replace

Plaintiff.5

        Plaintiff adduced evidence that Michael Hughes, a white man temporarily working as a Team

Leader for the second shift, had engaged in misconduct and that Defendant merely demoted Hughes.

During Hughes’ tenure, his subordinates lodged complaints directly with Defendant that Hughes was

showing undue preference to his brother and to a female employee on his assembly line. As a result,

Defendant launched an investigation into Hughes’ performance. Defendant’s managers spoke with

the female Hughes allegedly preferred, who told them “nothing improper was going on” between the

two. (J.A. at 281) When he spoke with Defendant’s managers, Hughes did not deny giving

preferential treatment to his brother.

        As a part of the investigation of Hughes, Defendant took statements from workers on

Hughes’ assembly line. According to Defendant, there were no complaints of inappropriate

language, verbal abuse, intimidation or threatening conduct on Hughes’ part. However, Plaintiff

proffered admissible evidence at the district court to the contrary. During Plaintiff’s tenure as Team

Leader, Production Manager Hall once asked Plaintiff to work on second shift for two weeks to

assist Defendant in evaluating Hughes. At that time, Hughes’ subordinates complained to Plaintiff,

claiming Hughes cursed at employees on his line. Plaintiff told Hall about these complaints.

        Additionally, Plaintiff produced a sworn affidavit from Terika Faux (“Faux”), one of Hughes’

subordinates from his days as Team Leader. Therein, Faux stated that Hughes “would often use


        5
         The record does not reflect who ultimately replaced Plaintiff on the first shift. However, it
does show that as of November 2004, Quince Seay, an African-American, served as Team Leader
of the second shift.

                                                  6
                                             No. 05-6330

much harsher vulgarities [than ‘damn’] which would be directed at” his subordinates, that she had

complained routinely to management about Hughes’ language, and that Hughes had “engaged in

sexually explicit dancing with a woman on the plant floor” one time. (J.A. at 292) Faux further

reported that, while three months pregnant, she confronted Hughes about a derogatory comment he

made and Hughes responded: “If I wasn’t a team leader, I’d knock the fuck right out of you.” (J.A.

at 293) Faux states she reported the incident to Plant Manager Powers and Production Manager Hall,

and they promised to “handle it.”6 (Id.)

        Additionally, Plaintiff produced a sworn affidavit from Terri Christian (“Christian”), another

employee who occasionally worked on Hughes’ team. According to Christian, Hughes “seemed to

always speak in an abusive, overly-authoritative and derogatory manner to the employees he was

supervising.” (J.A. at 312) By way of example, Christian stated that Hughes once responded to a

request for a bathroom break by saying “If you are not back in five minutes, I’ll fuckin’ write you




        6
        During its investigation of Hughes, Defendant solicited a signed statement from Faux
wherein she did not explicitly mention the incidents alleged in Plaintiff’s sworn affidavit. She did,
however, state “I hate coming in [sic] this place now – I get talked to like an idiot. Insults come from
Michael.” (J.A. at 154) Notably, Faux submitted her statement for the investigation into Hughes
on March 28, 2001, while she avers the incident with Hughes threatening her while pregnant
occurred in April or May 2001. (J.A. at 293) The affidavit submitted by Plaintiff asserts that
Hughes remained in a supervisory capacity when he threatened Faux in April or May 2001. It is
unclear from the record when, in fact, Defendant demoted Hughes.

        The district court ruled part of Faux’s affidavit – which referred to other employees’
complaints about Hughes – inadmissible as Faux averred no personal knowledge. This represents
only a small portion of Faux’s affidavit, however, and the facts set forth above were properly
admitted by the district court. As Defendant notes in its brief, Plaintiff does not challenge the district
court’s ruling excluding a small part of Faux’s affidavit.

                                                    7
                                           No. 05-6330

up.”7 (Id.) Defendant’s account of its investigation into Hughes makes no mention of the allegations

contained in either the Faux or Christian affidavits. Nevertheless, Defendant ultimately removed

Hughes from his temporary assignment as Team Leader and placed him back on the assembly line.

       B.       Procedural History

       On August 25, 2003, Plaintiff filed a complaint alleging racial discrimination in violation of

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e and 42 U.S.C. § 1981. Therein, Plaintiff

claimed that Defendant disciplined him more severely than a similarly situated white employee.

Plaintiff sought declaratory judgment that Defendant violated Title VII and 42 U.S.C. § 1981, an

Order directing Defendant to reinstate Plaintiff, and compensatory and punitive damages, among

other things.

       Following significant discovery, on November 9, 2004, Defendant filed a motion for

summary judgment and a statement of undisputed material facts. Plaintiff responded to Defendant’s

motion, as well as its statement of undisputed material facts, on November 29, 2004. Subsequently,

on January 6, 2005, Plaintiff filed a motion requesting that the court consider additional evidence

in support of its response to Defendant’s summary judgment motion. Ultimately, on July 27, 2005,

the district court granted Defendant’s motion for summary judgment.8 In the same order, the district


       7
         The district court also excluded a portion of Christian’s affidavit for failing to meet the
personal knowledge requirement of Fed. R. Civ. P. 56(e). The excluded portion of Christian’s
affidavit (Paragraph 6) also indicated other employees had complained about Hughes’s offensive
language and treatment. The facts set forth above were properly admitted by the district court, and
Plaintiff does not challenge the exclusion of Paragraph 6.
       8
         Although Plaintiff’s complaint also alleges that Defendant created a racially hostile work
environment, the district court found Plaintiff failed to sufficiently raise that claim. At any rate,
Plaintiff does not again raise his hostile work environment claim on appeal and, therefore, waives

                                                 8
                                             No. 05-6330

court granted in part and denied in part Plaintiff’s motion to consider additional evidence. Plaintiff

then filed his timely appeal before this Court.

                                           DISCUSSION

THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT TO DEFENDANT
ON PLAINTIFF’S CLAIM OF RACIAL DISCRIMINATION IN VIOLATION OF TITLE VII OF
THE CIVIL RIGHTS ACT, 42 U.S.C. § 1981 and 42 U.S.C. § 2000e

        A.      Standard of Review

        This Court reviews a district court’s grant of summary judgment de novo. Cotter v. Ajilon

Services, Inc., 287 F.3d 593, 597 (6th Cir. 2002). Summary judgment is proper where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. When presented with a motion for

summary judgment, the court views the evidence and draws all reasonable inferences in favor of the

non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

effect, “any direct evidence offered by the plaintiff in response to a summary judgment motion must

be accepted as true.” Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (internal citation

omitted). The district court errs by granting summary judgment for the defendant where issues of

credibility are determinative of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994).

        To support a grant of summary judgment, the moving party “may . . . discharge[] [its initial

burden] by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s


it.

                                                   9
                                            No. 05-6330

case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has done this,

“[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury

could reasonably find for the plaintiff.” Liberty Lobby, Inc., 477 U.S. at 252.

       B.      McDonnell-Douglas Framework

        Title VII prohibits racial discrimination in employment. 42 U.S.C. § 2000e-2(a)(1) (2000);

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973) (“Title VII tolerates no racial

discrimination, subtle or otherwise.”). An employee may establish a Title VII violation either by

adducing direct evidence of discrimination, or by raising an inference of discrimination. Talley v.

Bravo Pitino Rest., L.T.D., 61 F.3d 1241, 1248 (6th Cir. 1995).

       In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth the

appropriate framework for reviewing claims of racial discrimination in the absence of direct

evidence. First,

       [t]he complainant in a Title VII trial must carry the initial burden under the statute
       of establishing a prima facie case of racial discrimination. This may be done by
       showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified
       for a job for which the employer was seeking applicants; (iii) that, despite his
       qualifications, he was rejected; and (iv) that, after his rejection, the position remained
       open and the employer continued to seek applicants from persons of complainant’s
       qualifications.

Id. at 802; see also Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994).

Alternatively, where a plaintiff cannot show the fourth element of the above inquiry, a plaintiff can

make out a prima facie case by establishing that he is a member of a protected class, and “a

comparable non-protected person was treated better.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582


                                                  10
                                             No. 05-6330

(6th Cir. 1992). In that regard, plaintiff must proffer evidence that “for the same or similar conduct

he was treated differently than similarly-situated non-minority employees.” Id. at 583. A plaintiff

that meets this initial burden effectively “creates a presumption that the employer unlawfully

discriminated against” him. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).

        Second, if a plaintiff makes this initial showing, the burden then shifts to the defendant to

“articulate some legitimate, nondiscriminatory reason” for the allegedly discriminatory employment

action. McDonnell Douglas, 411 U.S. at 802. Third and finally, once the defendant advances a

legitimate reason for its employment action, the burden shifts back to the plaintiff “to demonstrate

by competent evidence that the presumptively valid reasons for [the employment action] were in fact

a coverup for a racially discriminatory decision.” Id. at 805. In any case, the inquiry is fact-specific,

and is intimately tied to the evidence adduced by the respective parties.

        Applying the McDonnell Douglas framework to the case at bar, we find that the district court

properly granted summary judgment to Defendant because, even drawing all inferences in Plaintiff’s

favor, he cannot show pretext. At the outset, we note that the district court’s finding that Plaintiff

established a prima facie case of discrimination under the McDonnell-Douglas framework is not

challenged on appeal. Plaintiff does, however, challenge the district court’s findings that Defendant

proffered a legitimate, nondiscriminatory reason for his discharge, and that he failed to establish

pretext.

        The district court correctly found that Defendant put forth a legitimate, nondiscriminatory

reason for the employment action. Notably, Defendant’s burden is not to affirmatively “prov[e]

absence of discriminatory motive.” Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25


                                                   11
                                            No. 05-6330

(1978). Rather, the defendant “must clearly set forth, through the introduction of admissible

evidence, the reasons for the plaintiff’s rejection.” Burdine, 450 U.S. at 254-55 (internal citations

omitted). Here, Defendant met its burden by asserting that it discharged Plaintiff for intimidating

his subordinates, using offensive and inappropriate language in the workplace, falsifying time cards,

and failing to deal with management in a forthright manner during their investigation. See

McDonnell Douglas, 411 U.S. at 803 (an employee’s “participation in unlawful conduct against” his

employer constituted a legitimate, non-discriminatory reason for declining to rehire him);

Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001) (employer met its burden “by asserting

that plaintiff was discharged because he violated Rule 8 by manhandling [a] coworker”); Mitchell,

964 F.2d at 584 (employer articulated legitimate reason that employee misused its property);

Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001) (“increasingly

poor job performance” can constitute a legitimate nondiscriminatory reason).

       We further find that, even viewing the evidence in the light most favorable to him, Plaintiff

cannot establish pretext. To meet his burden on pretext, the plaintiff must produce evidence

sufficient that a reasonable finder of fact could reject the employer’s proffered reason. Manzer, 29

F.3d at 1083 (citation omitted). Accordingly, the “plaintiff can demonstrate pretext by showing that

the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged

conduct, or (3) was insufficient to warrant the challenged conduct.” Hopson v. DaimlerChrysler

Corp., 306 F.3d 427, 434 (6th Cir. 2002) (internal citations and quotation marks omitted). At this

stage, “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s

asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully


                                                  12
                                            No. 05-6330

discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Here,

Plaintiff must disprove Defendant’s proffered reason by a preponderance of the evidence.

Additionally, Plaintiff must show that “discrimination was the real reason” for the adverse

employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

       A plaintiff can show pretext, first, by adducing “evidence that the proffered bases for the

plaintiff’s discharge never happened, i.e., that they are factually false.” Manzer, 29 F.3d at 1084

(internal citations and quotations omitted). Absent some substantiating evidence, a plaintiff’s mere

denial of “the defendant’s articulated legitimate reason . . . is insufficient for a race discrimination

claim to withstand a motion for summary judgment.” Mitchell, 964 F.2d at 585 (citation omitted).

However, even where a plaintiff can establish that the employer’s actions were premised on a false

or incomplete set of facts, he will not necessarily succeed in showing pretext. Where the employer

honestly believes in the reason given for its employment action, a plaintiff cannot demonstrate

pretext “simply because [the reason] is ultimately shown to be incorrect.” Majewski, 274 F.3d at

1117 (citing Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)). The employer can

establish “honest belief” by showing its “reasonable reliance on the particularized facts that were

before it at the time the decision was made.” Smith, 155 F.3d at 807. “[T]he decisional process used

by the employer [need not] be optimal [nor must it leave] 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. at 807.

       In this case, Plaintiff cannot demonstrate pretext by showing the allegations against him were

false. In its Response to Defendant’s Summary Judgment Motion, Plaintiff argued Defendant’s


                                                  13
                                            No. 05-6330

proffered reason for discharging him had no basis in fact because, first, it was based on inadmissible

hearsay and, second, Plaintiff denied falsifying time cards and threatening employees’ jobs. The

district court correctly held that the witness statements gathered by Defendant during its investigation

were properly admissible and did not constitute hearsay evidence. The Federal Rules of Evidence

define hearsay as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801. Defendant

offered the statements not to prove their truth, however, but to demonstrate the state of mind and

motive of Defendant’s managers in discharging Plaintiff. See King v. Tecumseh Pub. Sch., 229 F.3d

1152 (Table), 2000 WL 1256899, at *5 (6th Cir. July 13, 2000). The district court thus properly

considered the witness statements. As to Plaintiff’s second point, Plaintiff cannot rely on mere

denials of Defendant’s articulated reasons to show they had no basis in fact, but must produce some

evidence in support of his denial to survive summary judgment. See Mitchell, 964 F.2d at 585.

Plaintiff has failed to do so.

        In any event, it appears that Defendant honestly believed in the reason advanced for

discharging Plaintiff. Defendant conducted a thorough investigation into the September 15, 2001

incident, interviewing employees who were present, as well as the complainants.                Pending

completion of the investigation, Defendant placed Plaintiff on a temporary suspension. Plaintiff had

an opportunity to meet with his supervisor and to render his account of the event. Indeed, Plaintiff

received a second opportunity to explain the incident and speak in his defense a few days later.

        Perhaps this investigation was less than “optimal,” and conceivably it fell short in some

respects, leaving “stone[s] unturned.” See Smith, 155 F.3d at 807. However, Defendant’s


                                                  14
                                             No. 05-6330

investigation need not be perfect. Even viewing the evidence in the light most favorable to Plaintiff,

Defendant took care to gather “particularized facts” about Plaintiff’s conduct at work – both on

September 15, 2001 and otherwise – and, reasonably relying on those facts, made a “considered

decision” to discharge Plaintiff on that basis. See id. Moreover, as mentioned above, Plaintiff’s

mere denial of falsifying time cards and threatening employees’ jobs does not alone suffice to save

his case on summary judgment. See Mitchell, 964 F.2d at 585; Majewski, 274 F.3d at 1117. Thus,

in light of Defendant’s honest belief that Plaintiff used profane language in responding to

subordinates, falsified time cards, and fostered a negative work environment for its employees,

Plaintiff cannot satisfy his burden of showing pretext by proving the allegations about his work

conduct false.

        Secondly, a plaintiff can “admit[] the factual basis underlying the employer’s proffered

explanation and . . . that such conduct could motivate dismissal,” but ultimately demonstrate pretext

where “the sheer weight of the circumstantial evidence of discrimination makes it ‘more likely than

not’ that the employer’s explanation is a . . . coverup.” Manzer, 29 F.3d at 1084. To show pretext

in this fashion, “plaintiff may not rely simply upon his prima facie evidence but must, instead,

introduce additional evidence of . . . discrimination.” Id. Third, a plaintiff can also establish pretext

by establishing the employer’s reasons were insufficient to motivate the employment action. To do

so, a plaintiff can adduce “evidence that other employees, particularly employees not in the protected

class, were not fired even though they engaged in substantially identical conduct to that which the

employer contends motivated its discharge of the plaintiff.” Manzer, 29 F.3d at 1084. Inconsistency

in an employer’s explanation for such different treatment “raises an inference [of pretext] that must


                                                   15
                                            No. 05-6330

be drawn, at summary judgment, in favor of the nonmovant.” Seay v. Tenn. Valley Auth., 339 F.3d

454, 468 (6th Cir. 2003). In a “close case” where both sides have adduced weighty evidence and the

court cannot decide as a matter of law whether the employer’s proffered reason is legitimate or

pretextual, the issue must be submitted to a jury. Johnson v. Kroger Co., 319 F.3d 858, 869 (6th Cir.

2003). On appeal, Plaintiff contends Defendant’s proffered reasons “did not actually motivate it to

terminate him because similar conduct did not motivate [Defendant] to terminate Hughes.” (Reply

Br. at 4)

        In Braithwaite, this Court examined a case factually similar to the one at bar. In that case,

the plaintiff and a coworker engaged in an altercation during working hours on the employer’s

property. Braithwaite, 258 F.3d at 491. Coworkers present at the time gave conflicting statements

to the defendant in recounting the incident during employer’s subsequent investigation: some

described it as an exchange of words, while others reported plaintiff shoving his coworker. Id. at

491-92. The defendant’s employee handbook specifically mandated discharge of employees found

to “strik[e] or manhandl[e] another person.” Id. at 490. The handbook further made discharge

permissible for threats to coworkers. Id. After reviewing witness statements and determining

plaintiff had violated both rules, defendant discharged the plaintiff. Id. at 492. The plaintiff brought

suit alleging racial discrimination in violation of Title VII, and attempted to establish pretext by

arguing that several other employees who violated the employer’s rules by threatening others had

not been discharged. Id. at 497. There, however, the Court found the others were not similarly

situated to plaintiff since plaintiff had violated two company rules – the rule prohibiting threats to




                                                  16
                                            No. 05-6330

others, and the rule against manhandling coworkers (which, incidentally, made discharge

mandatory). Id.

        Even viewing the evidence in the light most favorable to him, Plaintiff cannot succeed in

showing pretext via the second or third methods. Plaintiff fails to raise a question of fact whether

Defendant treated him differently than Hughes for “substantially identical conduct.” To some extent,

Plaintiff relies on his “subjective belief” that his conduct can be equated with Hughes’ conduct. See

Hollins v. Atlantic Co., Inc., 188 F.3d 652, 660 (6th Cir. 1999). In fact, only some of their conduct

was similar. See Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 730 (6th Cir. 1999) (where only

“some” conduct was similar, plaintiff does not remotely establish comparably serious conduct).

Perhaps the two engaged in substantially identical conduct in speaking offensively towards their

subordinates or in treating those subordinates with disrespect, but the witness statements adduced

by Defendant show that Plaintiff routinely falsified his subordinates’ time cards. In addition,

Plaintiff’s subordinates were requesting transfers – at first for “personal reasons,” and later openly,

because they wanted to avoid working with Plaintiff. (J.A. at 262) Comparably, the Faux and

Christian affidavits do not support a finding that Hughes falsified time cards, or that his subordinates

had asked to be transferred. Moreover, Plaintiff’s subjective belief that Hughes’ preferential

treatment of his brother and a woman on the line somehow makes their conduct substantially

identical is untenable.

        Like the plaintiff in Braithwaite, Plaintiff relies on a comparison with an employee who

cannot be described as “similarly situated” in all relevant respects. The mere fact that subordinates

did not want to work with Plaintiff is relevant to Defendant’s different disciplinary decisions.


                                                  17
                                            No. 05-6330

Defendant’s concern for retaining its employees and avoiding the need to reschedule multiple

workers pursuant to these requests could be viewed as a “mitigating circumstance” preventing

comparison of Defendant’s conduct to Hughes’ arguably similar conduct. See Smith v. Leggett Wire

Co., 220 F.3d 752, 763 (6th Cir. 2000) (finding concern about plant safety constitutes “a ‘mitigating

circumstance’ that prevents any comparison”). Title VII “was not intended to ‘diminish traditional

management prerogatives,’” Burdine, 450 U.S. at 259, and this “Court cannot sit as a ‘super-

personnel department.’” Young v. Sabbatine, 238 F.3d 426, 2000 WL 1888672, at *6 (6th Cir. Dec.

19, 2000). Consequently, we conclude that the evidence in this case – even when viewed in the light

most favorable to Plaintiff – fails to support a finding that Defendant’s articulated reason for

discharging Plaintiff was mere pretext for discrimination.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment

to Defendant on Plaintiff’s claim of racial discrimination under Title VII of the Civil Rights Act, 42

U.S.C. § 2000e and 42 U.S.C. § 1981.




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