The Honorable Avern L. Cohn, United States District Judge for the Eastern District of Michigan, sitting by *

designation.

AMENDED

File Name: 07a0194n.06

Filed: March 13, 2007

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Case No. 05-2027

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL OZIER,

Plaintiff-Appellant,

v.

RTM ENTERPRISES OF GEORGIA, INC.,

doing business as Arby’s,

Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE WESTERN

DISTRICT OF MICHIGAN

BEFORE: BATCHELDER, MOORE, Circuit Judges; and COHN, District Judge.*

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Michael Ozier (“Ozier”),

appeals the district court’s decision granting summary judgment in favor of Defendant-Appellee,

RTM Enterprises of Georgia, Inc. (“RTM”), in this action in which Ozier claimed race and sex

discrimination in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981;

retaliation in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981; and

violation of Michigan’s Bullard-Plawecki Employee Right to Know Act. Because we conclude that

Ozier did not establish a prima facie case of discrimination or retaliation, and did not present
2

sufficient evidence to raise a genuine issue of fact with respect to his Bullard-Plawecki claim, we

affirm.

I.

RTM owns and operates Arby’s fast food restaurants nationwide, with two restaurants – one

on Gull Road and one on Cork Street – in Kalamazoo, Michigan. On December 27, 2000, RTM

hired Ozier, an African-American male, to work as an entry-level team member at the Cork Street

Arby’s, making $8.00 per hour. Ozier generally received positive work performance reviews, and

by early 2002, he had received several pay raises and had been made a team trainer, earning $8.60

per hour. Ozier’s first manager, Frank Davis, recommended to the area supervisor, Phil Morris, that

Ozier should be promoted to shift manager. A subsequent manager, Basem Shamus, also

recommended Ozier’s promotion to shift manager, but Ozier was never promoted.

In November 2001, D’Ann Tierney (“Tierney”), transferred from an Arby’s in Indiana to an

assistant manager position with the Gull Road and Cork Street Arby’s. She became the store

manager of the Cork Street restaurant in June 2002. Tierney observed that Ozier had “excellent

customer service skills,” and she gave him positive evaluations early in her tenure, observing that

“he was reliable, he was always there.” Tierney’s evaluation of Ozier was not unmixed, however.

Her chief criticism and concern was that Ozier was not a productive employee when left

unsupervised. She testified that Ozier would do whatever was asked of him, but that she would have

to ask him to do it, and he was not self-motivated. Tierney expressed her concern that “if I couldn’t

trust him to do the maintenance position, then how would I trust him to run a shift, unsupervised?”

She explained to Ozier that she would not simply promote him based on the number of years he had

worked there, and that he needed to prove himself before being promoted. Tierney believed that
3

Ozier’s work performance declined under her management because he was not working with a

manager present, whereas under both Davis and Shamus, Ozier had worked along with a manager.

Previous store managers had promised Ozier that he would be promoted to shift manager.

When she became store manager, Tierney talked with Ozier about his frustration at not being

promoted; she said that she understood that frustration and provided him with the restaurant’s 44-

page training manual for the shift manager position. This training program is largely driven by the

employee, and the employee is expected to take the initiative to learn the material in the manual, and

to complete the manual and present it to the manager.

Tierney assigned Bill Goodwin, an assistant manager, to advise Ozier during the training

program. She stated that she met with Goodwin and Ozier to discuss the training program, but Ozier

claims that they never discussed Goodwin’s helping him with the training. Rather, Ozier testified

that Mr. Goodwin merely “showed me some paperwork that I was supposed to be learning . . . just

little odds and ends that would update me on the [shift manager’s] book.”

Tierney explained that Ozier was given verbal tests related to the shift manager position, on

which he did not perform well, and that he failed to complete most of the sections of his training

book, so he did not qualify for any written examinations, which were required to qualify for the

promotion. Tierney claimed that Ozier began complaining to other employees in late 2002 that he

was being passed over for promotion because he is African-American. Having heard about the

complaints, Tierney confronted Ozier and he denied making them. Ozier claims that Tierney then

said to him that no one is promoted unless they “kiss a little butt.” Tierney denies making that

statement.
4

During this time, Tierney trained three other employees – all caucasian women – for manager

positions. Ozier claims that Tierney promised to train him after she was finished training Caralee

Waswick, the first of the three, and that no one at RTM ever explained to him why he was not

trained for the shift manager position. Tierney denies ever making such a promise. Ozier then

complained to the other managersin the store, includingWaswick, that Tierney was not training him

because of his race. In January 2003, weeks before Ozier’s termination, Waswick informed Tierney

of his comments.

RTM maintains that Ozier’s dismissal was unrelated to his comments and complaints about

Tierney, and that he was fired because on four separate occasions, Ozier had end-of-the-day cash

shortages in his cash register. Ozier claims he only remembers the third and fourth shortages. The

third shortage, in the amount of $20.87, occurred on December 9, 2002, and Ozier received a written

warning from Tierney, including notice that another shortage would result in his termination. The

fourth shortage, in the amount of $5.09, occurred on February 3, 2003. Tierney did not count the

drawer herself, but Waswick reported the shortage to her. Ozier denied that his drawer was short,

but he did not count the money in the drawer at the end of the day.

After the fourth shortage, Tierney reported to Phil Morris, the area supervisor, that Ozier’s

drawer was short again after he had been given a final warning, and Morris agreed that Ozier’s

employment should be terminated. Tierney stated that the cash shortages were the only reason she

had for firing Ozier.

When Ozier arrived at work after the fourth cash shortage, Tierney informed him that his

drawer was short again and that he was being fired. Ozier claims that during this meeting, Tierney

told him that “I heard you been talking about me behind my back.” Ozier denied that his drawer was
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short, and questioned whether he was being fired for comments he had made to Waswick.

According to Ozier, Tierney responded that in fact his drawer was short and that was why “we’re

getting rid of you.”

Shortly after he was fired, Ozier requested his personnel file. Ozier claims that he received

only parts of the file, which did not include any performance reviews or disciplinary write-ups that

would ordinarily be included in a personnel file. Ozier submitted a second request for his personnel

file along with a letter from his attorney, but RTM has not given him the file, claiming that it cannot

be located.

Ozier filed a three-count complaint against RTM in the Michigan state court, alleging that

RTM’s failure to promote him was the result of race and sex discrimination and retaliation and that

RTM’s failure to turn over his personnel file violated Michigan’s Bullard-Plawecki Act. RTM

removed the action to the United States District Court for the Western District of Michigan, and

moved for summary judgment on all claims. After hearing oral argument, the district court granted

RTM’s motion. Ozier filed this timely appeal.

II.

We review de novo the district court’s grant of summary judgment. Hammon v. DHL

Airways, Inc., 165 F.3d 441, 447 (6th Cir. 1999). Summary judgment pursuant to Fed. R. Civ. P.

56 is appropriate if 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(c). When considering

a motion for summary judgment, “the inference to be drawn from the underlying facts . . . must be

viewed in the light most favorable to the party opposing the motion.” Adkins v. United Mine
Although Ozier’s complaint also claimed discrimination on the basis of sex, the district court did not mention 1

sex discrimination in its opinion, Ozier does not mention it in his briefs on appeal, and he has apparently abandoned that

claim.

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Workers, 941 F.2d 392, 399 (6th Cir. 1991) (quoting United States v. Diebold, 369 U.S. 654, 655

(1962)). The standard for determining whether summary judgment is appropriate is whether “the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986).

A. OZIER’S RACIAL DISCRIMINATION CLAIM FOR ALLEGED FAILURE TO PROMOTE

Ozier alleges that RTM discriminated against him on the basis of race in violation of 42 1

U.S.C. § 1981. He may establish a claim of discrimination either by introducing direct evidence of

discrimination, or by providing circumstantial evidence which would support an inference of

discrimination. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). “The direct

evidence and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove

one or the other, not both.” Id. at 348-49. “Under the direct evidence approach, once the plaintiff

introduces evidence that the employer terminated him because of his race or other protected status,

the burden of persuasion shifts to the employer to prove that it would have terminated the plaintiff

even had it not been motivated by discrimination.” Johnson v. Univ. of Cincinnati, 215 F.3d 561,

572 (6th Cir. 2000). See also Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081

(6th Cir.1994).

Under the circumstantial evidence approach, we apply the McDonnell Douglas test. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The variant of that test that we have

applied in failure-to-promote cases requires that in order to establish a prima facie case of racial
7

discrimination, Ozier must demonstrate that: (1) he is a member of a protected class; (2) he applied

for and was qualified for a promotion, (3) he was considered for and denied the promotion; and (4)

other employees of similar qualifications who were not members of the protected class received

promotions at the time the plaintiff's request for promotion was denied. Nguyen v. City of Cleveland,

229 F.3d 559, 562-63 (6th Cir. 2000). If Ozier establishes his prima facie case, a mandatory

presumption of discrimination is created and the burden shifts to RTM to “articulate some legitimate,

nondiscriminatory reason for the employee's rejection.” McDonnell Douglas Corp., 411 U.S. at 802.

If RTM carries this burden, then Ozier must prove that the proffered reason was actually a pretext

to hide unlawful discrimination. Id. at 804. He may establish that the proffered reason was a mere

pretext by showing that 1) the stated reason had no basis in fact; 2) the stated reason was not the

actual reason; or 3) that the stated reason was insufficient to explain the defendant's action. See

Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir.1991). “[A] reason cannot be proved

to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that

discrimination was the real reason.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

The district court properly rejected Ozier’s claim that Tierney’s alleged comment that he

would have to “kiss a little butt” to be promoted amounted to direct evidence of racial

discrimination. As we have held, “‘simple teasing’ or ‘offhand comments, and isolated incidents’

do not amount to direct evidence of discrimination under Title VII.” Singfield v. Akron Metro. Hous.

Auth., 389 F.3d 555, 561 (6th Cir. 2004) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)). In addition, the district court correctly observed that it was pure speculation to infer that

the alleged comment was racially motivated.
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Finding no direct evidence of discrimination, the district court analyzed Ozier’s claim using

the McDonnell Douglas approach. The district court acknowledged that Ozier satisfied the first and

third prongs of the test, namely that he is a member of a protected class and that he suffered an

adverse employment action. See Nguyen, 229 F.3d at 562 (“For the purposes of Title VII, a failure

to promote is an adverse employment action.”) The court then turned to the second prong of the

prima facie case, which requires Ozier to demonstrate that he was qualified for the promotion he

sought.

The district court found that Ozier had failed to present evidence that he was qualified for

the promotion to shift manager. The court noted that although Tierney was sympathetic to the fact

that previous managers had recommended Ozier for promotion, she had explained that Ozier lacked

initiative and did not perform well without supervision, and that she believed that these

characteristics disqualified Ozier for a shift manager position. This evidence is unrefuted in the

record. Furthermore, it is undisputed that Ozier’s training book “remained almost entirely

unmarked”; that the shift manager training program is driven by the employee and the employee is

expected to take the initiative in completing the training book and preparing for the promotion

examinations; that RTM requires that the training program be completed in order to qualify for

promotion, and that Ozier performed poorly on verbal tests, and therefore was never given the

written tests necessary for promotion.

From the record, it is clear that the district court did not err in concluding that Ozier was not

qualified for the promotion he sought. Because Ozier failed to satisfy the second prong under

McDonnell Douglas, he failed to establish his prima facie case for racial discrimination. Failure to

satisfy the second prong is dispositive of the issue, and while we therefore do not need to determine,
9

as the district court did, that Ozier also failed to satisfy the fourth element of the prima facie case

because he could not show that he was replaced by a person outside of the protected class or was

treated less favorably than a similarly situated individual outside of his protected class, we find no

error in that conclusion.

B. OZIER’S RETALIATION CLAIMS

Ozier alleges that RTM retaliated against him by dismissing him after he claimed that he was

the victim of racial discrimination. The district court found that Ozier’s claim lacked merit and did

not create a genuine issue of fact for trial, and we agree.

Ozier complained about Tierney behind her back on several occasions, making derogatory

comments about her and her work ethic, as well as accusing her of discrimination. Tierney testified

that in October 2002 she had heard rumors from the other employees that Ozier had been

complaining about her, and that she warned him that if he had a problem with her, he should come

talk to her about it. Shortly before Tierney fired Ozier in February 2003, she allegedly said, “I heard

you been talking about me behind my back.” Ozier argues that this statement provides direct

evidence of retaliation. The district court disagreed, finding that it would have to speculate about

what Tierney meant by the statement because the statement on its own does not “unequivocally

connote discriminatory motives,” and, therefore, was not direct evidence of retaliation. We agree.

As we have held, “direct evidence is that evidence which, if believed, requires the conclusion

that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v.

Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). It does not

require the fact finder to draw any inferences to reach that conclusion. See Abbott v. Crown Motor

Co., 348 F.3d 537, 542 (6th Cir. 2003); see also Nguyen, 229 F.3d at 563. Here, as the court
10

explained, Ozier has provided only inferences and speculation and the statement itself does not

require us to conclude that Tierney was motivated, even in part, by unlawful discrimination in

deciding to terminate Ozier’s employment.

Finding no direct evidence of retaliation, the court turned to whether Ozier had established

a prima facie case of retaliation. To meet this light burden, Ozier must show: 1) that he engaged

in a protected activity; 2) that this was known to the defendant; 3) that the defendant took an adverse

employment action against him; and 4) that there was a causal connection between the protected

activity and the adverse employment action. See Singfield, 389 F.3d at 563. The court assumed for

the sake of argument that Ozier met the first element of the test, and then noted that it was

undisputed that he also met the second and third elements.

Under federal law, in order to show a causal connection between the protected activity and

the adverse action – the fourth element of the prima facie case – Ozier must produce sufficient

evidence to support an inference that RTM took the adverse employment action because Ozier had

complained of discrimination. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.

1997). Ozier has submitted no evidence other than temporal proximity to support his assertion that

there was a causal connection between his complaints against Tierney and his termination. We have

held that temporal proximity alone is insufficient to establish a causal connection. See Little v. BP

Explorations & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001); Nguyen, 229 F.3d at 566; Cooper v. City

of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). The record indicates that Ozier has failed

to meet his burden of establishing a causal connection and we agree with the district court’s decision.

We also agree with the district court that even assuming that Ozier properly established a

causal connection, he failed to show that RTM’s articulated reason for dismissal was pretextual. As
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the court rightly observed, RTM has never wavered from its assertion that it dismissed Plaintiff for

repeated cash shortages. It is undisputed that terminating employees for repeated cash shortages is

consistent with companypolicy, and that Ozier had been warned that any additional shortages would

result in termination. Ozier, although he denies that he was terminated because of the cash shortages

in his register, has offered no evidence that he was not in fact terminated because of his fourth cash

shortage. Summary judgment for RTM in this case was appropriate.

C. OZIER’S BULLARD-PLAWECKI ACT CLAIM

Ozier requested from RTM a copy of his complete personnel file, which RTM failed to

provide. RTM claims that it cannot locate the file. Tierney testified that upon receipt of Ozier’s first

request, Morris copied the entire file and Tierney personally sent it to Ozier by certified mail. She

testified further that Morris eventually took the file to Cleveland, Ohio, to the general repository for

personnel files for individuals whose employment with RTM had been terminated. Affidavits from

RTM employees indicate that they extensively searched for Ozier’s personnel file, but were unable

to find it. Ozier alleges that RTM intentionally destroyed or concealed the file, but has provided no

evidence to support his claim. He contends that RTM has violated Michigan’s Bullard-Plawecki

Act, Mich. Comp. Laws. § 423.503, by failing to produce his personnel file upon request.

The Bullard-Plawecki Act provides in pertinent part:

An employer, upon written request which describes the personnel record, shall

provide the employee with an opportunity to periodically review at reasonable

intervals, generally not more than 2 times in a calendar year . . . the employee’s

personnel record if the employer has a personnel record for that employee.

Mich. Comp. Laws § 423.503.

Under § 423.511 of the Act:
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If an employer violates this act, an employee may commence an action in the circuit

court to compel compliance with this act . . . . Failure to comply with an order of the

court may be punished as contempt. In addition, the court shall award an employee

prevailing in an action pursuant to this act the following damages:

(a) For a violation of this act, actual damages plus costs.

(b) For a wilful and knowing violation of this act, $200.00 plus cost,

reasonable attorney’s fees, and actual damages.

Whether an employer violates the Bullard-Plawecki Act by losing an employee’s personnel

file is a question of first impression for this Court. Michels v. Delaware McDonald’s Corp., No. 83-

CV-1380-DT, 1985 U.S. Dist. LEXIS 21074 (E.D. Mich. Apr. 3, 1985), is the only case in Michigan

or this Circuit addressing the issue of a lost personnel file under Bullard-Plawecki. In Michels, the

employer lost the employee’srecord but later discovered it, and the court held that if a personnel file

is lost, then the employer does not have a personnel record for that employee within the meaning of

the Bullard-Plawecki Act and therefore the employer is not required to produce it. Michels, 1985

U.S. Dist. LEXIS 21074, at *2. Here, the district court followed Michels and concluded that RTM

could not produce what it did not have and did not violate Bullard-Plawedki as long as the file was

lost.

In this case, Tierney testified that she copied Ozier’s personnel file and sent it to him by

certified mail, and RTM produced sworn affidavits from RTM employee’s indicating an extensive

but fruitless search for the missing file. Ozier presented no evidence to the contrary. We recognize

that it would be difficult for a plaintiff to demonstrate that an employer intentionally destroyed or

concealed a file, but the only evidence in the record is that Ozier’s file is lost. We agree with the

district court that the reasoning in Michelsis sound, and we affirm the court’s conclusion that, under

these circumstances, Ozier has failed to present evidence sufficient to preserve this claim for trial.
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CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of district court.
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

In affirming the district court’s grant of summary judgment for RTM on Ozier’s discrimination

claim, the majority states that Tierney’s testimony concerning Ozier’s supposed lack of initiative is

“unrefuted in the record” and, therefore, that the district court properly determined that Ozier was

unqualified for the promotion that he sought. On the contrary, however, the record reflects that, prior

to Tierney’s arrival at the Cork Street restaurant, Ozier had received consistently positive

performance reviews, had been made a team trainer, and had been recommended by several

supervisors for management training. Joint Appendix (“J.A.”) at 291 (Ozier Dep. at 35-37); J.A. at

312-13 (Tierney Dep. at 54-58).

Moreover, our precedents demonstrate that the majority’s reliance on Tierney’s testimony

is misplaced. In Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003) (en banc), we

held that, “[a]t 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.” Id. at 575 (citing Aka v. Washington

Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en banc) (pointing out that “an employer’s

asserted strong reliance on subjective feelings about the candidates may mask discrimination”)).

Accordingly, I would hold that the evidence establishes a genuine issue of material fact concerning

Ozier’s qualifications and would affirm the district court’s grant of summary judgment only on the

ground that Ozier failed to establish the fourth prong of a prima facie case by demonstrating that a

similarly situated non-African-American employee was promoted. I therefore concur only in the

court’s judgment as to this claim.

I also disagree with the majority’s holding that Ozier has failed to establish the fourth

(causation) prong of a prima facie case of retaliation. In support of that holding, the majority states
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that “Ozier has submitted no evidence other than temporal proximity” to show causation. Again,

however, the majority’s statement is at odds with the record, which reveals not only that Ozier was

fired soon after complaining of Tierney’s racial bias but also that Tierney referred to Ozier’s

complaints in terminating his employment. J.A. at 114-15 (Ozier Dep. at 54-55). I would hold that

this additional evidence is sufficient to establish the causation element of the prima facie case.

The majority further concludes that Ozier has not shown evidence of pretext to rebut RTM’s

asserted, non-retaliatory reason for his termination. The Supreme Court has, however, held that the

evidence proffered in support of a plaintiff’s prima facie case may also be considered when

determining the issue of pretext:

A satisfactory explanation by the defendant destroys the legally mandatory inference

of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this

evidence and inferences properly drawn therefrom may be considered by the trier of

fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there

may be some cases where the plaintiff’s initial evidence, combined with effective

cross-examination of the defendant, will suffice to discredit the defendant’s

explanation.

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981); see also St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s disbelief of the reasons put forward by

the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to show intentional discrimination.”); Cantrell v.

Nissan N. Am. Inc., 145 F. App’x 99, 107 & n.2 (6th Cir. 2005) (“We hold that the same

circumstances which established a causal connection between Cantrell’s protected activity and her

termination also serve as sufficient evidence to [establish pretext].”). Because, therefore, I would

hold that Ozier’s evidence both establishes a prima facie case and demonstrates pretext, I respectfully
There is no definitive evidence here that RTM deliberately misplaced Ozier’s file, but the oddly coincidental 2

loss of the file shortly after Ozier requested it, combined with Ozier’s assertion that he never received the copy allegedly

sent to him, give rise at least to an inference favoring his claim. Moreover, we must consider the import of our rulings

for future cases and the likely influence of those holdings on future parties’ behavior.

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dissent from the court’s affirmance of the grant of summary judgment for RTM on Ozier’s retaliation

claim.

Finally, I believe that the majority errs in affirming the district court’s grant of summary

judgment for RTM on Ozier’s claim under the Bullard-Plawecki Right to Know Act (the “Right to

Know Act”), MICH. COMP. LAWS §§ 423.501 et seq. It is true that an employer that loses an

employee’s file before the employee requests it cannot be said to possess the file at the time of the

request. In this case, however, it is undisputed that RTM had possession of Ozier’s file at the time

of his request and only later claimed to have misplaced it while transferring it to a storage facility.

If the Right to Know Act is to have any force at all, it must impose upon an employer some

affirmative duty to safeguard an employee’s file once it has been requested, at least until the

employer has ascertained that the requesting employee has actuallyreceived the relevant documents.

Otherwise, unscrupulous employers are likely to “lose” files deliberately rather than produce them.2

Accordingly, I respectfully dissent from the court’s affirmance of the grant of summary judgment

on Ozier’s Right to Know Act claim.