NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0583n.06 No. 10-1074 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

EFEO SA I DEMUDIA, P laintif f-App ellant,

v. J .P. MORGAN CHASE, a corpor ation; MI CHAEL

BA ERS, an individual, Defendan ts-Appellees.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: SUHRHEINRICH, MOORE, and COOK, Cir cuit Judges. KA REN NELSO N MOORE, Circuit Judge. Plaintiff-Appellant Efeo s a I d e mudia appea ls the district c ourt’s g rant of summary judgme nt to Def endants-A

ppellees J .P. Morg an Chase Ba nk, N.A. (“Chase ”) and Michae l Ba ers (tog ether , “De fenda nts”), on his claim of rac e and national-orig in discrimination broug ht pursuant to Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and Michig an’s Elliott -L arse n Civil R i g hts Act (“EL CRA”). Be cause I demudia has not prese nted

ev idence sufficie nt to raise a g enuine issue of materia l fac t with respe ct to whether Def endant s ’ leg itimate, nondiscriminatory rea sons for terminating him are prete x t for discrimination, we AF F IRM the district court’s g rant of summar y judgme nt.No. 10-1074

Idem udia v. J.P. M

organ Chase et al.

I. F ACTS & BACK GR OUND I demudia is an Af

rica n Americ an who was born in Nig eria

. He star ted workingfor Chase in 1996 as a bank teller in Ne w York City . Whil e wor king f or Chase in Ne w York, I demudia was promoted to sever al differ ent tel l er positions and then to the position of a persona l banker

. I n November 2006, he was promoted to branc h manag er for a new branc h that opened in Kalama zoo, Michig an in April 2007. Also in April 2007, Ba er s , who is white, beca me the District Manag er

overse eing I demudia’s br anch. On May 2, 2007, Cha s e F ie ld O p erations Service Coach J ohn Tinay conducte d a routine audit visit to assess coac hing needs; he provided fee dback and rate d the branc h as “Ne eds Work.” R.52 Ex

. 32 (Recor d of Br anch Visit). I demudia testified that Tinay worke d with the branc h’s assistant branc h manag er (“AB M”) Rober t By rd duringthis training visit and that the only issue that Tinay discussed with I demudia wa s communications issues betwee n I demudia and B y rd. On M ay 16, 2007, persona l banker Malisa Gries broug ht her ch i l d re n t o the bank, and the children pulled the fire alar m. The bank was char g ed $500 for causing the police depar tment to respond. I demudia wa s not at the bank on May 16, 17, or 18, beca

use his w ife was in the hospital delivering their son, and the bank was under the manag ement of AB M By rd during this time. Also

o n M ay 1 6 , By

rd instructed Gries to lock customer deposits in a teller station, which was ag ai n s t Chase’s policy and proce dure. On J une 1, 2007, Chase Global Security and I nv e s tig ations conducte d

an investigation of what happene d on May 16. I demudia first stated that he found the missing deposits on Saturday , May 19, but, upon review ing the branc h’s video re cording , he stated that he

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and Gries found the deposits on Monday , May 21. I demudia testified in his deposition that he was confuse d about the dates beca use he came into the branc h on Saturday even though he was not supposed to work that day

. One repor t resulting from the investigation indicated that both By rd and I demudia would be suspended. One of th e i n v es t i gat ors, Ron Philpot , who is Afric an Americ an,

rec ommended that I demudia be terminated for the incident beca use he believed that I demudia lied about the customer

deposits. By

rd was terminated, but Ba ers decided not to terminate I demudia. I ns t ea d , I demudia was place d on suspension until J une 5, 2007. On J une 7, 2007, I demudia was issued a written war

ning, which listed numerous conce rns with I demudia’s m anag ement of the branc h. I demudia allege s t h at Baers added the loss amount on the warning afte r I demudia si g ned it. Compare R.52 Ex

. 25 (written war ning with loss amount), with id. Ex

. 50 (written war ning without loss amount). He also alleg es that he was g iven a war ning by Ba ers with Ba ers’ s manag er Dan Dubeau present but that Ba ers switched the documents and gave h i m a f i nal written warning without Dubea

u prese nt. After By

rd was terminated, Ba ers did not hire a repla ceme nt AB M during the two-month period that I demudia re mained at the ba nk. On J une 25, 2007, Tinay conducte d another audit visit, ag ain providing fee dback and rating the branc h as “N eeds Work.” R.49 Ex

. 11 (Recor d of Br anch Visit). I demudia testified that althoug h the branc h did not have an AB M at the time of Tinay ’s second visit, I demudia did not speak with Tinay about the results of the visit. Ba ers also met with I demudia on J une 25, 2007, to develop

a “B ranc h Action Plan.” On J une 26, 2007, Chase trainer Serena Ketter er conducte d a branc h visit and prepa red a repor

t base d o n h er visit. The repor t noted positive observations from the visit,

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organ Chase et al. including that the b ra n ch h ad no “loss acc ount war ehouse” (“LAW”) losses. The repor t also 1 indicated are as for impro v e me nt, including that I demudia was “having trouble scheduling the branc h eff ectively” and that I demudia had “committed” to taking cer tain online training course s. R.52 Ex

. 41 (B ranc h Visit Report at 2–3). Ketter er worke d direc tly with I demudia during th i s v i s i t , and I demudia rec eived by email a copy of her repor t, which she prepa

red afte r her visit. Ba ers met with I demudia ag ain on J uly 2, 2007 and J uly 3, 2007, t o discuss branc h action plans. During Ba ers’ s visit on J uly 3, 2007, Ba ers showed I demudia examples of other branc h action plans, and I demudia laug hed at them and said they wer e “ridiculous.” R.49 Ex .14 (B aer s documentation at 4); R.49 Ex

. 25 (Jul y 21, 2009 I demudia De p. at 199). On J uly 24, 2007, I d em u d i a spoke with persona l banker Dawn L y ons-Dea n reg arding an inappropriate comment that she made to a customer. L y ons-Dea n then left the branc h when she was supposed to be working

. I demudia prepa red a formal written disciplinary action ag ainst L y ons-Dea n for insubordination and, on J uly 25, 2007, rec ommended that she be terminated. I demudia had had

sever al prior interac tions with L y ons-Dea n, resulting in written statements. I demudia also alleg ed that L y ons-Dea

n once commented that she alway s had been told she would have a supervisor with “blue ey es, slick hair” and that another time she responde d to a statement that I demudia made about g etting along with his neig hbors, who wer e white, by stating it was “bec ause y ou’re Afric an, if y ou

A Chase repor

t indicates that “LAW” losses are “[a]ccount related losses that do not include 1 o t h er losses char g ed to the branc h, i.e. such as teller differ ence s.” R.52 Ex

. 26 (L AW re p o rt ). I demudia descr i b es “LAW ” losses as “losses that are avoidable, but beca use the employ ee didn’t follow policies and proce dures, it resulted in a loss.” R.49 Ex

. 25 (Jul y 21, 2009 I demudia Dep. at 220). 4No. 10-1074

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wer e Afric an Americ an, that wouldn’t happen.” R.49 Ex

. 23 (J u l y 2, 2009 I demudia Dep. at 109–10). Ba ers did not acc ept I demudia’s rec ommendation and did not termi n at e L y ons-Dea n. Ba ers stated t h at he did not terminate her because I demudia did not follow proper proce dure with respe ct to th e writ eups and beca use he had “re ason to believe that [I demudia was] not manag ing [L y ons-Dea

n] properly .” R.49 Ex. 24 (Bae rs Dep. at 30). At some point befor e I demudia was termi nated, Ba ers asked I demudia to interview for a persona l banker position ava ilable in Steve nsville, Michig an. The base pay for the position is less than I demudia made as branc h manag er, and the branc h is over forty -five minutes from I demudia’s residenc e. I demudia alleg es that Ba ers threatened that he would write up I demudia if I demudia did not interview. I demudia also alleg es that, in the same conver sation that Ba ers told I demudia to apply for the persona l banker position, Ba ers also told I demudia that Ba ers had dated an Afric an Americ an woman for

three y ear s and that she had broken up with him beca use her family

did not approve of him being white. On Au gu s t 1 , 2 0 0 7, Ba ers came to the branc h and asked if I demudia had completed the training that Tinay and Ketter er had rec ommended afte r their branc h visits. I demudia responde d that he had, but when Ba ers asked I demudia to pull up the training on the computer, I demudia admitted that he had not completed the training

. I demudia admitted in his deposition that he lied to Ba ers about completing the training

. When asked why he had lied about the training that Ba ers reque sted him to take, I demudia responde d that the training “wa s a nuisance ” and that “[i] t is like having a fly

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buzz ing by y our ear , y ou have to swat the fly off and say just leave me alone.” R.49 Ex

. 25 (Jul y 21, 2009 I demudia De p. at 108). Ba ers g ave I demudia the option to resig n or to be terminated. I demudia testified that he said he would let Ba ers know his choice and ex pressly denies that he tol d Ba ers that he would resig n. I demudia was repla ced by a white woman who was initially hired as a branc h manag er for a branc h that Chase wa s consideringopening in the Battle Creek a rea but that never

in fac t opened. II. P ROCEDURAL HISTORY I demudia filed a char g e of discrimination with the Michig an Depa rtment of Civil Rights on Fe bruar y 22, 2008. After recei v i n g a rig ht-to-sue letter from the U.S. Equal Employ ment Oppo rt u n i t y Commi ssion (“EE OC”), I demudia filed a complaint ag ainst Def endants in Michig an state court alleg ing one count of rac e and national orig in discrimination under Title VI I , the EL CRA, and § 1981. Def

endants remove d the case to the United States Dist rict Court for the Western

2 District of Michig an pursuant to 28 U.S.C. §§ 1441, 1446. After disc o v er y , De fe ndants filed a motion for summary judgme nt. At a hea ring on the motion, the district court orally announce d its

Chase filed the Notice of Removal, which does not name Ba ers as joining in the remova l. 2 Even i f t h e fa i lure to name Ba ers in the Notice of Removal is a proce dural defe ct pursuant to the “rule of unanimity ,” which require s all proper ly serve d or joined defe ndants to join in the remova l or to file a written consent to the remova l, but see Harper v. AutoAlliance Int’l, Inc. , 392 F.3d 195, 201–02 (6th Cir. 2004) (sugg esting that technica l defic iency in not ice of remova l can be cured by subsequent filings indicating consent to remova l), I demudia waived any challeng e to this potential proce dural defe ct by failing to file a motion to rema nd within thirty day s of remova l. Lofti s v. United Parcel Se rv., Inc. , 342 F.3d 509, 516–17 (6th Cir. 2003) (c iting 28 U.S.C. § 1447(c) ; Page v . City of Southfield , 45 F.3d 128, 133–34 ( 6th Cir. 1995)). 6No. 10-1074

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decision g ranting Def

endants’ motion. The district court subsequently enter ed judgme nt dismiss ing the ca se, and I demudia timely appea led. III. ANALYSIS A. Standard of

Review “We revie w the district court’s g rant of summary judgme nt de novo.” Hamilton v. Gen. Elec. Co. , 556 F.3d 428, 433 (6th Cir. 2009). Summary judgme nt is appropr iate when “the movant shows that there is no g enuine dispute a s to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56 (a ). Ad d itionally , we must view all fac ts and infere nces in the light most favor able to the non- moving pa rty

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). B. Race and National-Origin Discrim ination Claim I demudia cla ims that he was ter minated bec ause of

his race and national or igin. Title VI I 3 of the Civil Ri g hts Act of 1964 prohibits e mploy ers from discriminating ag ainst individuals “with respe ct to his compensation, terms, conditions, or privileg es of emp l o y ment” beca

use of rac e or national orig in. 42 U.S.C. § 2000e-2( a)( 1). Simi larly , M ic h ig a n ’ s E L CR A prohibits employ ers from discriminating ag ainst individuals “with respe ct to employ ment, compensation, or a term, condition,

Def endants arg

ue that I demudia did not exhaust his administrative reme dies with respe ct to 3 his claim of national-orig in discrimination be cause he did not identify national orig in as a basis on his char g e of discrimination. Be cause exhaustion of administrative reme dies is not a jurisdictional prer equisite, Mitchell v. Chapman , 343 F.3d 811, 819–20 (6th Cir. 2003), cert. denied, 542 U.S. 937 (2004), and beca

use we ag ree on the m er i t s wi t h t h e district court’s decision to g rant summary judgme nt, we nee d not addre ss this arg ument. 7No. 10-1074

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or privileg e of employ

ment” beca

use of rac e or national orig in. M I C H . C O M P . L A W S § 37.2202(1)( a). Section 1981 g uara

ntees that “[a]ll persons within the jurisdiction of the United States shall have the

same rig ht in ever

y State and Terr itory to make and enfor ce contra ct s . . . as is enjoy ed by white citizens.” 42 U.S.C. § 1981(a)

. We revie w claims of discrimination broug ht under the EL CRA and § 1981 under the same standards as claims broug ht under Title VII

. W h i te v. Baxter Healthcare Corp. , 533 F.3d 381, 391 (6th Cir. 2008), cert. denied , 129 S. Ct. 2380 (2009); Sutherland v. Mich. Dep’ t of Tr easury , 344 F.3d 603, 614 n.4 ( 6th Cir. 2003). 1. Direc t Evidence I demudia’s arguments to t h e d i s t ri ct court and on appea l rely on the burden- shifting fram ework set forth by the Supreme Court in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792 (1973), for claims involving circ umstantial evidenc e of discrimination. Nonet h el ess, within his analy sis of the three -step McD onnell Douglas framework, I demudia asser ts tha t B aer s’s statement that Ba ers once dated an Afric an Americ an woman but that she broke up wit h h i m b ec ause he is white is direc t ev i d en ce o f discrimination. The district court stated that I demudia did not raise a claim us ing direct evidence and that there wa s “no [direct] evidence in any event,” and procee ded to analy ze the case , as the parties prese nted it, under the McD onnell Douglas fra mework. R.66 (Hr’ g Tr. at 44). De fenda

nts a rgue on appea l that I demudia failed to r aise a direc t-evidenc e argument in the district court and that Ba ers’ s statement was not “a neg ative ref ere nce t o I demudia’s rac e and national orig in” and “ proves nothing neg ative conc erningBa ers.” Appellee Br . at 20.

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I demudia raised the direc t-evidenc e argument to the district court in the same manner as he does on appea l, and we ag ree with the district court that he has failed to develop adequately a claim using the direc t-evidenc e method of proof. See United States v. Stewart , 628 F.3d 246, 256 (6th Cir. 2010) (“I ssues adver

ted to in a perf

unct o ry manner , unacc ompanied by some eff ort at develope d argumentation, are deeme d waived. I t is not sufficie nt for a party to mention a possible argument in the m ost skeletal way , leaving the court to put flesh on its bones.” (a lteration omitted) (interna l quotation marks omitted)); see also DiCarlo v. Potter , 358 F.3d 408, 415 (6th Cir. 2004) (explaining the fra mework when plaintiffs prese nts direc t evidenc e, which differ s from the McD onnell Douglas framework use d when plaintiffs pr esent indirec t evidence ). Even if we wer e to consider I demudia’s argument, it is without merit beca use Ba ers’ s statement does not constitute direct evidenc e of discriminatory intent. “Dire ct evidenc e is that evidenc e which, if believe d , re q u i res the conclusion that unlawful discrimination was at least a motivating fac tor in the employ er’ s actions.” DiCarlo , 358 F.3d at 415 (alter ation omitted) (interna l quotation ma

rks omitted). “Consistent with this definition, direc t e vidence of discrimination doe s not require a fac tfinder to draw any infere nces in order to conclude that the challeng ed employ ment action was motivated at least in part by prejudice ag ainst members of the protec ted g roup.” Id. (interna l quotation marks omitted). Ba ers’ s statement itself is not discriminatory or neg ative towards I demudia’s rac e or national orig in. Cf. id. at 415–16 (super visor called employ ee a “dirty wop”)

. Howeve r, “[a]lt houg h it is true the disputed [st atement] will not alway s be evidenc e of rac ial animus, it does not follow that the

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t er m , standing alone, is alway s benig n. The speake r’s meaning may depend on various fac tors including context, inflection, tone of voice, local custom, and historical usag e.” Ash v. Tyson Foods, Inc. , 546 U.S. 454, 456 (2006). That Ba er s m ad e the statement in the same conver sation that he alleg edly threatened I demudia about the persona l-banke r interview sug g ests that the statement was intended to express that Ba ers holds r acia l animus as a result of the experience with his g irlfriend. I demudia perc eived the statement in this manner . On the other hand, Ba ers made the statement reg arding his ex-girlf

riend in response to a statement by I demudia that he did not want to g o to the Stevensville branc h beca

use he did not “wa

nt to g o to a place wher e [he would] stick out like a sore thumb, be like the only black man in a 100 mile radius.” R.49 Ex

. 23 (Jul y 2, 2009 I demudia Dep. at 97–98). Ba ers responded that h e “experience d that” and then proceede d to tell I demudia about his ex-girlf

riend. Id. at 98. When considere d in this context, a fac tfinder could draw the infere nce that Ba ers simply int en d ed to show understanding in response to I demudia’s expressed conce rn. Diffe rent infere nces could be draw n, and thus Ba ers’ s statement does not “re quire[] the conclusion” that Ba ers wa s motivated by prejudice

. See D iCarlo , 358 F.3d at 415. 2. Ind irec t Evidence To prove intentional discrimination using indi r e c t o r c irc u mstantial evidenc e, I demudia must

use the burden- shifti n g fr amewor k set forth in McD onnell Douglas and modified in Texas Departme nt of Community Affairs v. Burdine , 450 U.S. 248, 252–53 (1981). See W hite , 533 F.3d 4

I demudia does not a lleg e a mix ed-motive claim pursuant to 42 U.S.C. § 2000e -2(m). See 4 W hite , 533 F.3d at 396–402 (re jecting application of the McD onnell Douglas/Bu rdine framework for sing le-motive cla ims to m ix ed-motive c laims). 10No. 10-1074

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at 391; W right v. Murray Guard, Inc. , 455 F.3d 702, 706 (6th Cir. 2006). First, “the plaintiff bear s the i n i t i al ‘not onerous’ burden of establishing a prima facie case of discrimination by a preponde ranc e of the evidenc e.” W hite , 533 F.3d at 391 (quoting Burdine , 450 U.S. at 253). Once the plaintiff establishes a prima fac ie case , there is a presumption of discrimination, and the burden shifts to the defe ndant to rebut the presumption by p ro v i d i n g evidenc e of a “leg itimate, nondiscriminatory rea son” for the action taken. B u rdine , 450 U.S. at 253–54 (interna l quotation marks omitted). I f the defe n d an t s at i s fi es this burden with a leg ally sufficie nt explanation, the burden shifts ba ck to the plaintiff to show that the defe ndant’s proff ere d rea sons “ wer e not its true

rea sons, but wer e a prete x t fo r d i scrimination.” Id. at 253. “Throughout this burden- shifting approa ch, the plaintiff continues to bear the ultimate bur den of proving , by a preponde ranc e of the evidenc e, the intent to discriminate.” W right , 455 F.3d at 707. a. P rim a F acie Case of Discrim ination To demonstrate a prima f acie case of discrimination, the “pla intiff must demonstrate that: (1) he is a member of a protec ted class; (2) he wa s qualified for his job; (3) he suffe red an adver se employ ment decision ; an d (4) he was repla ced by a person outside the protec ted class or treated differ ently than simil arly s i t u ated non-protec ted employ ees.” W hite , 533 F.3d at 391. I t is 5

The fourth prong of th e prima fac ie case for proving discrimination under the EL CRA 5 require s the plaintiff to show that he “wa s discharg ed under circ umst an ces that g ive rise to an infere nce of unlawful discrimination,” Lytle v. Malady , 579 N.W.2d 906, 914 (Mich. 1998), but the Michig an Supreme Court also has stated that its prima fa cie case “is an adaptation of the United States Supreme Court’s McD onnell Douglas test” for discrimination claims brought under Title VI I

. Id. at 914 n.19; accord Lind v. City of Battle Creek, 681 N.W.2d 334, 338 (Mich. 2004) (conf irming that the McD onnell Dougl a s test for a prima fac ie case applies to claims broug ht pursuant to the 11No. 10-1074

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organ Chase et al. undisputed that I demudia can meet the first and third elements: he is Afric an Americ an and he was terminated. I n their motion for s u m m ary judgme nt, Def endants alleg ed that I demudia could not satisfy the second and fourth element s o f t h e p ri m a fac ie case . The district court assumed for purposes of its analy sis that I demudia had demonstrated a prima fac ie case and proce eded to decide th e c a s e under the analy sis of whether Def endants’ rea sons for terminating I demudia wer e leg it im a te , nondiscriminatory rea sons, and, finding that they wer e, whether the rea sons we re p retex t for discrimination. We c onclude that I demudia has satisfied the second and fourth elements of the prima fac ie

case . When considering the second element of the prima fac ie case , we “foc us on a plaintiff’s objective qualifications to deter mine whether he or she is qualified for the rele vant job.” W exle r v. W hite’s Fine Furniture, Inc. , 317 F.3d 564, 575 (6th Cir. 2003) (en banc)

. “[A] court may not consider the employ er’ s alleg ed nondiscriminatory rea son for taking an adver se employ ment action when analy

zing the prima fac ie case . To do so would by pass the burden- sh i ft i n g an aly sis and deprive the pl aintiff of the opportuni ty to show that the nondi scriminatory rea son was in actuality a pre text desig ned to mask discrimination.” Id. at 574. I demudia had w orked at Chase for e leven y ear s and “wa s an above aver ag e [personal banker ]” in a branc h in N ew York City , which “is why he was selec ted to” the branc h manag er position in Michig an. R.55 Ex

. A (Perf ormanc e Review at 1). Chase does not dispute that I demudia’s branc h produce d “g ood numbers.” R.49 Ex

. 24 (B aer s Dep. at 44–47, 58). Thus, I demudia has demonstrated that he was objectively q u alified for the

EL CRA); Hazle v. Ford M otor Co. , 628 N.W.2d 515, 521 (Mich. 2001) (same).

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endants’ more subjecti v e re as o n s for terminating I demudia for his inability to manag e should not be considere d at the prima fac ie stag e. I demudia also satisfied the fourth element of the prima f

acie case beca

use he w as re place d by

a white f emale. Be cause I demudia has established a prim a fac ie case , there is a presumption of discrimination, and the burden sh i ft s t o De fendants to rebut the presumption with a leg itimate, nondiscriminatory

rea son for ter

minating I demudia. b. Legitim ate, N ondi scrim inatory Reason Def endants claim that I demudia was termin at ed beca use of his inability to manag e the branc h. Specifica lly , the Recommendation for Ter mination that Bae rs sent to Chase mana g ement states that he rec ommended terminating I demudia “bec ause of unsatisfac tory perf ormanc e, lack of leade rship ability , poor manag ement of the branc h, opera tions issues, [and] failure to follow policy and proce dure.” R.52 Ex

. 1 7 (R ec . for Termination); accord R.49 Ex

. 22 (EEOC L etter at 2) (“[Def endants] provided information that the decision to terminate y our employ ment was not based

on the reve nue g ener ated by the branc h during the first months afte r it opened. I t was based on y our lack of lea dership ability , poor mana g ement of the branc h, operations iss ues, and f ailure to f ollow policy and proce dures which cre ated unacc eptable risk for the branc h.”). Although the five rea sons listed on the R ec o m m en d at ion for Termination are very g ener al, the document further states that I demudia “was given a written warning reg arding these iss ues on J une 7, 2007 alongwith severa l follow up meeting s discussing his lack of prog ress during J une and J uly of 2007.” R.52 Ex

. 17 (Rec. for Termination); see R.52 Ex

. 25 (Written Warning ) (listing “conc erns reg arding [I demudia’s]

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l ea d er s hip as a branc h manag er” ); R.49 Ex .14 (B aer s documentation). The written war ning and Ba ers’ s documentation of the meeting s that he had with I demudia provide detail reg arding the issues and events that Def

endants claim support their decision to terminate I demudia. Th er efor e, we believe that the Def

endants’ proff

ere d rea sons for terminating I demudia are sufficie ntly “‘c lear and

rea sonably specific ’” and are “supported by ‘admissible evidenc e which would allow the trier of fac t rationally to conclude that th e e mp lo y me nt d e c is io n [w a s ] n o t mo ti v ated by discriminatory animus.’” W hite , 533 F.3d at 392 (alteration in original) ( quoting Burdine , 450 U.S. at 257–58). T h e p roff ere d rea sons thus constitute a leg ally sufficie nt explanation to re b ut th e p r e s u mp ti o n

o f d i s cr i mination. Fur

thermore , I demudia does not dispute that Def endants have put forth a leg itimate, nondiscriminatory rea son. See Appellant Br. at 21–46 (ar g uing that Def endants’ leg itimate, nondiscriminatory rea sons were prete x t); Reply Br . at 6–7. c. P ret ext The district cour

t’s decision to g rant summary judgme nt in favor of Def endants wa s based

on its analy sis of the final, prete x t stag e of the McD onnell Douglas/Burdine fra mework. The district court stated that there was “[r] epea ted evidence that [I demudia] was not functioning in a way that

a manag er would function” and that its “over whelming revie w of the rec ord sug g ests that the defe nse actua lly went o u t o f i t s wa y . . . to attempt to keep Mr. I demudia with the org anization in one capa city or another and not that it was working to remove him f rom the org anization.” R.66 (Hr’ g Tr. at 48, 53). The district court conclude d that “the re cord is rea lly beyond g enuine dispute and bey ond rea sonable dispute that he w as unsucc essful as a branc h manag er.” Id. at 55.

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To meet his burden of showing p re text , I demudia “must produce sufficie nt evidenc e from which the jury may rea sonably reje ct the employ er’ s explanation.” W arfield v. Lebanon Corr. Inst. , 181 F.3d 723, 730 (6th Cir. 1999) (interna l quotation marks omitted). More spec ifically , we have stated, Pretext may be established “either direc tly by persua ding the trier of fac t that a discriminatory rea son more likely motivated the employ er or indirectly by showing that the employ er’ s proff

ere d explanation is unworthy of credenc e.” B u r d i n e , 4 50 U.S. at 256. A plaintiff will usually demonstrate prete x t by showing t h at t h e employ er’ s stated re ason for the adve rse e mploy

ment action either (1) has no basis in fac t, (2) was not the actua l rea son, or (3) is insufficient to explain the employ er’ s action. See Imwalle v. Reliance Med. Prods., Inc. , 515 F.3d 531, 545 (6th Cir. 2008) (citing Manzer [ v. Diamond Shamrock Chems. Co. ], 29 F.3d [1078,] 1084 [(6th Cir. 1994), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc. , --- U.S.

--- , 129 S. Ct . 2343 (2009)]). W hite , 533 F.3d at 392–93 (alter ation omitted). These three interrelated way s in which a plaintiff usually demonstrates prete x t, howeve r, are not formal require ments; rathe r, many “for m[ s ] o f ci rcumstantial evidenc e [can be] probative of intentional discrimination.” Ree ves v. Sanderso n Plumbin g P r o ds., Inc. , 530 U.S. 133, 147 (2000); accord Chen v. Dow Chem. C o. , 580 F.3d 394, 400 n.4 (6th Cir. 2009). For example, “the plai n t i ff m ay also demonstrate prete x t by offe ring evidenc e which challeng es the rea sonablene ss of the employ er’ s decision ‘to the extent that such an inquiry sheds light on whether the employ er’ s proff ere d rea son for the employ ment action was its actua l motivation.’” W

hite , 533 F.3d at 393 (quoting W exle r , 317 F.3d at 578). We “ask whether the plaintiff has produce d evidenc e that casts doubt on the employ er’ s explanation, a nd, if so, how strong it is.” Chen , 580 F.3d at 400 n.4. We ultimately must decide whether the plaintiff’s evidenc e of prete x t, combined with the evidenc e establishing the plaintiff’s prima fac ie case , would “per mit 15No. 10-1074

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the trier of fac t to conclude that the em p l o y er u n lawfully discriminated.” Ree ves , 530 U.S. at 147–48; accord Hazle , 628 N.W.2d at 522 (“[A] plaintiff must not mere ly raise a triable issue that the employ er’ s proff

ere d rea son was prete x tual, but that it was a pretex t fo r unlawful discrimination.” (a lteration omitted) (interna l quotation marks omitted)). I demudia argues that he has cast doub t on Def endants’ explanation with a varie ty of circ umstantial evidenc e, including evidenc e that Ba ers made rac ially motivated rema rks to him, that

mos t o f t h e re as o n s in the J une 7 written war ning wer e no longe r a conce rn by the time he was te r mi n a te d , th a t Def endants’ rea sons wer e contra dictory and double standards, and that Ba ers cre ated

unrea sonable expectations for him a nd no other branc h manag ers. I demudia also relies heavily on his branch ’s s ales production to impugn Def endants’ explanation that I demudia was terminated beca use of his inability

to manag e the br anch. We ag ree with I demudia th at t he district court did not take into acc ount the evidenc e that Ba ers told I demudia about a form er Afric an Americ an g irlfriend who broke up with him. This statement by the manag er responsible for supervising and, later, terminating I demudia, althoug h not direc t e vidence of discrimination, is circumstantial evide nce of discriminatory intent. Cf. Risch v. Royal Oak P o l i ce De

p ’t , 581 F.3d 383, 392–93 (6th Cir. 2009) (discussing how discriminatory

rema rks and evidenc e of a discriminatory atmosphere can be evidenc e of prete x t); Vincent v. Brewer Co. , 514 F.3d 489, 498 (6th Cir. 2007) (“This court has held that discriminatory rema rks may serve

as evidenc e of prete x t beca use they indicate the prese nce of animus toward a prot ec ted g roup.”)

. Fur ther, the statement wa s made in the same conver sation in which Ba ers alleg edly require d

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I demudia to interview for a persona l banker position in another branc h forty -five minutes awa y . We disag ree with the district court’s view that Ba ers’ s act to arr ang e the interview nece ssarily supports

a finding of no prete x t. Requiring I demudia to g o back to the po s i t i o n o f a p er sonal banker afte r being promoted to branc h manag er is likely an adver se employ ment action, see Schram v. Schwan’s Sales Enters., Inc. , 124 F. Ap p ’x 380, 385–86 (6th Cir. 2005) (unpublished decision), and is discriminatory if the demotion was beca use of I demudia’s rac e. The district court’s view that Ba ers

was “try ing to save a position for him at the bank” is one in fe re n ce t h at could be drawn from the fac ts, R.66 (Hr’ g Tr. at 52), but, in the light most favor able to I dem u d i a, the infere nce could be drawn that Ba er s wa s try ing to demote I demudia. I demudia also prese nted evidenc e that Dea n- 6 L y ons, the employ ee whom he rec ommended for termination, had made rac ially motivated rema rks to him. See Ris ch , 5 8 1 F.3d at 393 (“We have held that discriminatory rema rks, even by a nondecisionmake r, ca

n serve as probative evidenc e of pr etext.”).

At oral argument, counsel for Def endants argued that, under the “same -ac tor” principle, the 6 fac t that Ba ers did not follow Philpot ’s rec ommendation to terminate I demudia af t er the May 16 incident cre ates a strong p re s u m p t i o n that Ba ers was not discriminating ag ainst I demudia two months later when terminating him. See W exle r , 317 F.3d at 572 (“[T]he same-a ctor infere nce . . . allows one to infer a lack o f d iscrimination from the fac t that the same individual both hired and fired the empl o y ee . ” (interna l quotation marks omitted)). Even assuming that the same-a ctor principle would be applicable here , we have held that the same-a ct o r infere nce “is insufficient to war rant summary judgme nt for the defe ndant if the employ ee has otherwise raised a g enuine issue of materia l fac t.” Id. at 573–74 (en banc)

. Def endants also highlig ht the fac t that Baers rec eived approva l for I demudia’s termination from Dubea u’s boss Tony Glover who is an Afric an Americ an; howeve r, the Supreme Court has “re jected any conclusive presumption that an empl oy er will not disc riminate ag ainst members of his own rac e.” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 78 (1998); accord W

exle r , 317 F.3d at 574. 17No. 10-1074

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We never theless conc lu d e tha

t I demudia has not prese nted circ umstantial evidenc e of prete x t that, when considere d with the evidenc e supporting his prima fac ie case , would allow the trier of fac t to infer intentional discrimination. We rec og nize at the outset that decisions made on the basis of subjective criter ia, such as whether an employ ee is an eff ective manag er, can “‘pro vide a rea dy mechan i s m for discrimination,’” and thus such decisions are “‘c are fully scrutinized.’” Scott v. Eastman Chem. Co. , 275 F. App’x 466, 476 (6th Cir. 2008) (unpublished decision) (quoting Rowe

v. Cleveland Pneumatic Co., Numerical Control, Inc. , 690 F.2d 88, 93 (6th Cir. 1982)). Moreove r, Def endants’ “business judgme nt” reg arding I demudia’s ability to manag e “ is n o t an absolute defe nse to unlawful discrimination.” W exle r , 317 F.3d at 576. “[T] he rea sonablene ss of [t he] decision may be considere d to the extent that s uch an inquiry sheds light on whether the employ er’ s proff ere d

rea son for the employ

ment action was its actua l motivation.” Id. Howeve r, Def endants supported their more g ener al, subjective explanation with specific examples o f manag ement tasks that 7 I demudia was told to complete but did not. Def endants state that I demudia was asked to modify his

s ta f f s c h e d u le , c omplete cer

tain online training course s, and develop branc h ac ti o n s p la n s w it h B a e r s .

Of the five g ener al rea s o n s s t ated on I demudia’s Recommendation for Termination, 7 I demudia does prese nt evidenc e that he fo l lowed corr ect policy and proce dure with respe ct to rec ommend i n g the termination of L y ons-Dea n. I n his deposition, Ba ers responde d “Ye s” when asked, “How many policies and proce dures does Chase have? Did I not follow all of them? ” R.49 Ex

. 24 (B aer s Dep. at 72). W h en a defe ndant prese nts multipl e leg itimate, nondiscriminatory rea sons for the employ

ment action, howeve r, the plaintiff must demonstrate that eac h independe ntly sufficie nt rea son is a prete x t for illega l discrimination. Smith v. Chrysler Corp. , 155 F.3d 799, 806 (6th Cir. 1998). 18No. 10-1074

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I dem u d i a has not demonstrated a g enuine issue of materia l fac t with respe ct to the cre dibilit y of Def endants’ r eliance on these unpe rfor med manag ement tasks. Wit h respe ct to scheduling , I demudia points to the statement of a Chase investigato r in v o lve d in the May 16 incident that Gries “will not be a closer g oing forwa rd,” R.52 Ex

. 3 4 (Email from Diane Koltunchik at 2), as evidenc e reg arding the rea sonablene ss of Ba ers’ s criticism of I demudia’s scheduling

. But the rec ord shows that whether Gries should be schedule d to close was not the only scheduling problem. The J une 7 written war ning stated that I dem u d i a was expected to “[r]eview staff scheduling wi t h [ Ba er s ] and make/communica te chang es to [t he branc h] team” and that “[c]hange s should be responsive to business needs and ensure equity .” R.52 Ex

. 25 (Writ t en Warning at 2). Ketter er also provided I demudia with instruction on scheduling

. R.49 Ex .12 (B ranc h Visit Report at 2). I demudia, howeve r, continued to utiliz e a fix ed time schedule despite Def endants’ reque st that he not. Wit h respe ct to the online training that I demudia did not complete, 8 he argues that it was no t m an d at o ry in the sense that Ba ers did not tell him that he would be terminated unless he completed it. But I demudia does not dispute that Ba ers told him to c omplete the training

. Additionally , Ketter er’ s repor t indicates that I demudia “committed that he [would] take [certain listed] on-line course s” and lists additional course s that Ketter er noted she “would

rec ommend” that he take. R.49 Ex .12 (B ranc h Visit Report at 3). I demudia did not complete the training and testified that the training “wa s a nuisance ” and that “[i] t is like having a fly buzz ing by

I demudia also admitted that he lied to Ba ers about whether he completed the training on the 8 day that Ba ers terminated him. Def endants, howeve r, do not rely on the fa ct that I demudia lied as a re ason for

terminating him. 19No. 10-1074

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y our ear , y ou have to s wa t t h e fl y off and say just leave me alone.” R.49 Ex

. 25 (Jul y 21, 2009 I demudia De p. at 108). I demudia argues that he did not have time to schedule and to complete the training , and that these expectations wer e unrea sonable g iven that he did not have a full-time AB M. I demudia dismi s s es t h e fa ct that Ba ers sent him an AB M from another branc h to help out, alleg ing that the AB M came in whene ver she wanted a nd she did not repor

t to him. Yet, I demudia also stated t hat he did not take the time to speak with Ba ers about the AB M that he saw on his time sheets beca use he “nee ded a hundred perc ent focus on [hi s sales] numbers” an d h e “c o uldn’t aff ord to be distracted.” R.49 Ex . 25 (Jul y 21, 2009 I demudia De p. at 214–16). Wit h respe ct to the branc h action plans, the J une 7 written war ning states that I demudia was expected to, with Ba ers, “deve lop a branc h action plan that provides s p ec i fic expectations for

coac hing the staff on [certain sales] behavior s.” R.52 Ex

. 25 (Written Warning at 2). I demudia admits that when Ba ers visited the branc h on J uly 3, 2007, and showed I demudia examples of other branc h action plans, I demudia laug hed at them and said they wer e “ridiculous.” R.49 Ex .14 (B aer s documentation at 4) ; R.25 (J uly 21, 2009 I demudia De p. at 199). I demudia also stated, [Baer s] was trying to do some action plan.

. . . [H] e showed me hi s action plan but based on the results of my branc h, he should be looking at my action plan and saying, how do y ou do this, but meanwhile he’s showing me all t h i s other stuff and I ’m g oing, those branc hes y ou’re showing me didn’t make the g oal, I blew them awa y . The g oal—I made a hundred forty -one perc ent of the g oal and y et y ou’re showing me all these bra

nches that two campaig ns in a row did not make it, y et y ou want me to chang e my sty le of manag ement to their sty le when they s h o u l d b e ch ang ing their sty le to mine. I didn’t understand why he – So that’ s why I said, this g uy is just not being fair. I mean, my branc h is producing numbers, my branc h is clea n and y et he’s forc ing me to manag e the wa y other bra nch mana g ers mana g e. 20No. 10-1074

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R.49 Ex . 23 (Jul y

2, 2009 I demudia De p. at 103–04). I demudia argues that Ba ers creat ed t h es e tasks for him and no other branc h manag ers. I demudia specific ally points to the online training as something that Ba ers did not require of other branc h manag ers. He also argues that, althoug h Chase advises district manag ers to “use the numbers” to help branc h manag ers build action plans, Ba ers admits that he did not “u se the numbers” to help I demudia. R.49 Ex

. 24 (B aer s De p . at 8 0 ). Even assuming that Ba ers treated I d em u d i a differ ent than other branc h manag ers with respe ct to scheduling , training , and build i n g

ac t i on plans, I demudia has not demonstrated that the other branc h manag ers wer e also havi n g

9 simil ar or other proble ms in their branc hes. I demudia has provided no e vidence that other bra nch manag ers rec eived simil ar fee dback from Chase audits or branc h visits or wer e experiencing simil ar problems, and y et were not reque ste d t o m o d ify their schedule, t ake online training , or work with Ba ers to develop a differ ent action plan. The evidenc e reg arding the tasks that I demudia was asked to complete does not sug g est that Def endants’ r equests we re pr etexts for discrimination. As noted above, Def

endants do not dispute that I demudia’s branc h was highly succe ssful in its sales production. R.49 Ex

. 24 (B aer s Dep. at 4 4

– 4 7 , 5 8 ). Howeve r, Def endants produce d evidenc e to support their explanation that they asked I demudia to perf orm cer tain manag ement tasks that he did not complete. We do not believe that the evidenc e in the rec ord, with the infere nces drawn in favor of I demudia, calls into question Def endants’ reque sts of I demudia or their subsequent

Ba ers testified, and I demudia does not dispute, that the training was rec ommended by Tinay 9 and Ketter er. R.49 Ex

. 24 (B aer s De p . at 77). Ketter er also instructed I demudia on scheduling

. R.49 Ex .12 (B ranc h Visit Report at 2). 21No. 10-1074

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decision to terminate I demudia for failing to complete the tasks as prete x t for intentional discrimination. C. Rule 38 Request Finally , Def

endants argue in their brief that I demudia’s discrimination claim is so lacking in fac tual and leg al bases that we should find his appea l “fr ivolous” and should provide Def endants the opportunity to rec over damag es and costs pursua n t t o Fe d era l Rule of Appellate Procedur e 38. Be cause Def

endants’ reque st was “not made in a sepa rate ly filed motion as Rule 38 require s,” we d en y t h e re quest. K & T Enters., Inc. , 97 F.3d 171, 181 (6th Cir. 1996); accord Anderson v. W illiamson , 100 F.3d 956, 1996 WL 640464, at *3 (6th Cir. 1996) (unpublished table decision); Clark v. Cent. Cartage Co. , 73 F.3d 361, 1995 WL 758459, at *3 (6th Cir. 1995) (unpublished table decision). We obser

ve, howe ver, that I demudia’s a ppeal wa s not frivolous. IV. CONCLUSION Be cause I demudia has not prese nted evidenc e sufficie nt to raise a g enuine issue of materia l fac t as to whether Def

en d ants’ rea sons for terminating him wer e prete x t for discrimination, we AF F IRM the district court’s g rant of summar y judgme nt in favor of

Def endants on a ll claims.

22