UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Kenneth W. Briere, 

Plaintiff, 

v. 

City of Allen Park, 

Defendant. 

________________________________/

Case No. 15-cv-10051 

Judith E. Levy 

United States District Judge 

Mag. Judge Mona K. Majzoub 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION 

FOR SUMMARY JUDGMENT [19] 

 Kenneth Briere brought suit against the City of Allen Park, 

claiming discrimination based on a shoulder injury in violation of the 

Americans with Disabilities Act, retaliation for complaining about the 

purported discrimination and for testifying against the City in a 

different case, and retaliation for filing a charge of discrimination with 

the Equal Employment Opportunity Commission. Defendant filed a 

motion for summary judgment on February 2, 2016, and after the 

motion was fully briefed, the Court held a hearing. For the reasons set 

forth below, defendant’s motion is granted. 

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I. Background 

Plaintiff Kenneth Briere began working for defendant City of 

Allen Park in 1998, and worked there in park maintenance until he was 

terminated in mid-August 2014. (Dkt. 19-2 at 44.) In 2005, he injured 

his shoulder on the job and was placed on permanent medical work 

restrictions. (Id. at 64.) His restrictions included no lifting over fifty 

pounds, no reaching above shoulder height, and no repetitive use of his 

right arm. (Id.) 

In January 2012, plaintiff agreed to testify on behalf of Cassandra 

Parks in her Title VII discrimination lawsuit against the City of Allen 

Park. (See id. at 9.) Relatedly, plaintiff provides an audio recording of a 

purported conversation with his supervisor of that time, garage foreman 

John Mensinger, in which Mensinger states that plaintiff would “get 

harassed on the job” unless he fabricated testimony that was helpful to 

the city. (Dkt. 22-1.) According to plaintiff, Mensinger’s statement 

evidenced that defendant “was going to retaliate against [him] because 

of his testimony which was adverse to the City of Allen Park.” (Dkt. 22 

at 18.) He testified on behalf of Cassandra Parks anyway. 

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In May 2012, plaintiff had a verbal and physical “altercation” with 

Mensinger because of his testimony on behalf of Cassandra Parks, in 

which there was some “chest[-]” and “belly-bumping.” (Id. at 10, 18-19; 

see also Dkt. 19 at 9-10.) Plaintiff reported the incident to defendant’s 

management and filed a criminal assault complaint. (Dkt. 22 at 19.) 

Human Resources Director Donald Wood issued an initial memo 

directing that Mensinger was to have no contact with plaintiff while the 

investigation was ongoing unless necessary. (Dkt. 19-2 at 20; Dkt. 19-4 

at 2-3.) Ultimately, after plaintiff withdrew the criminal complaint, 

defendant “removed any supervisory duties to [sic] Mensinger over 

[plaintiff],” and plaintiff was to “report directly to Doug Morton, 

Director of Public Services.” (Dkt. 19-5 at 2-3.) 

In January 2014, a foreman position opened in the Department of 

Public Service and Water Department. (See Dkt. 19-6.) There is 

conflicting evidence, but in the light most favorable to plaintiff, the job 

listing was posted everywhere except for plaintiff’s work area.1 (Dkt. 

19-2 at 13.) As a result, plaintiff testified that he was unaware of the 

 

1 Defendant makes much of the fact that because it was not a union position, the 

City was not obligated to post the job opening in plaintiff’s work area (see Dkt. 19 at 

11, 16, 27, 29), but this is irrelevant to whether defendant had an unlawful motive 

when it did not post the information in that work area. 

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opening until the application period closed. (See id.) Plaintiff testified 

that he met with Matt Dohring, the union president, and Kyle Major, 

the union steward, because he wanted to have the opportunity to 

interview for the job. (Id.) According to plaintiff, union steward Major 

later told plaintiff that HR Director Wood had told him that plaintiff 

would be allowed to submit his application late and would be 

interviewed for the foreman position. (Id.) Plaintiff submitted an 

application, but DPS Director Morton, who was in charge of hiring for 

the position, declined to interview plaintiff due to his untimely 

application. (Id. at 13-14.) 

Defendant presents unrefuted evidence that in early 2014, City 

administrators decided to eliminate plaintiff’s job. (Dkt. 19-8 at 5-6.) 

According to defendant, City of Allen Park Emergency Manager Joyce 

Parker wanted to eliminate all full-time employees in plaintiff’s 

department except for the director, but HR Director Wood advised her 

that plaintiff was a member of the union and had “bumping rights” 

under the union’s collective bargaining agreement. (Dkt. 19 at 13; see 

Dkt. 19-8 at 13.) Plaintiff was then placed in a position as a 

maintenance employee at City Hall, with the same pay and job duties, 

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but from the hours of 7:30 AM to 4:00 PM rather than the hours of 6:00 

AM to 2:30 PM, which he had worked before. (Dkt. 19-2 at 19.) 

On June 26, 2014, after the decision to transfer plaintiff to City 

Hall, plaintiff filed a charge of discrimination with the EEOC, alleging 

that he was “denied a promotion” to the Water Department Foreman 

position because of his shoulder disability. (Dkt. 19-13.) On July 1, 

2014, plaintiff reported to City Hall for work. (Dkt. 19-2 at 16.) He 

testified that there was no one present except for Mensinger and that 

he feared for his safety. (Id.) Plaintiff also testified that he met 

Emergency Manager Parker for the first time later that day, when he 

introduced himself to her and expressed his safety concerns. (See id. at 

16-17.) A few days later, plaintiff went on a pre-approved vacation that 

lasted approximately one month. (Id. at 25.) 

While on vacation, plaintiff emailed City Administrator Karen 

Folks regarding his fear of having to work in proximity to Mensinger, 

stating that he believed the City was attempting to “force [him] to quit 

[his] job.” (Dkt. 19-14 at 2-3.) There were several communications over 

the next month, and when plaintiff failed to report to work on July 31, 

2014, after his vacation, City Administrator Folks advised him that he 

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was required to report to work and that they could discuss his safety 

concerns in person. (Dkt. 19-17 at 2-4.) Plaintiff requested that they 

first speak on the phone about his concerns, but City Administrator 

Folks advised him that if he did not return to work to meet in person, it 

would be considered job abandonment or resignation. (See id.) Plaintiff 

still refused to return to work, and he was terminated on August 14, 

2014. (See Dkt. 19-19 at 2.) 

II. Standard 

Summary judgment is proper when “the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may 

not grant summary judgment if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the 

evidence, all facts, and any inferences that may be drawn from the facts 

in the light most favorable to the nonmoving party.” Pure Tech Sys., 

Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing 

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)). 

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III. Analysis 

Plaintiff brings three claims. First, plaintiff claims that defendant 

did not post the announcement or interview him for a job opening for 

Water Department Foreman because of his shoulder disability, in 

violation of the ADA. Second, plaintiff claims that defendant retaliated 

against him for testifying in Cassandra Parks’ case and also for 

complaining to defendant that it had discriminated against him based 

on his disability. Third, plaintiff claims that defendant terminated him 

in retaliation for filing a charge of discrimination with the EEOC. 

a. Disability discrimination claim 

Plaintiff claims that defendant discriminated against him based 

on his shoulder disability when defendant did not to post the 

announcement or interview him for the Water Department Foreman 

position. Defendant argues that plaintiff cannot establish 

discrimination under the ADA because there is no direct evidence of 

discrimination. (Dkt. 19 at 25.) Plaintiff responds that he can establish 

a direct-evidence, mixed-motive claim of disability discrimination. (Dkt. 

22 at 12-13.) Defendant replies that plaintiff “has failed to present 

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sufficient evidence for a reasonable jury to conclude his disability was a 

motivating factor for any of the City’s actions.” (Dkt. 23 at 2.) 

Neither party addresses whether a mixed-motive claim of 

disability discrimination is cognizable under the ADA. Such a claim is 

not. See Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th 

Cir. 2012) (“The ADEA and the ADA bar discrimination ‘because of’ an 

employee’s age or disability, meaning that they prohibit discrimination 

that is a ‘but-for cause of the employer’s adverse decision.’”) (quoting 

Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009)). Because plaintiff 

essentially concedes that he has only “pled a mixed motive claim” of 

direct discrimination (Dkt. 22 at 12-13), plaintiff must establish a prima 

facie case under the burden-shifting framework as set forth in the 

relevant case law—namely, the Supreme Court’s McDonell Douglas 

decision and its progeny—to survive summary judgment. 

To establish a prima facie case of unlawful discrimination under 

the ADA, a plaintiff must show that: (1) he is disabled; (2) otherwise 

qualified for the position, with or without reasonable accommodation; 

(3) suffered an adverse employment decision; (4) the employer knew or 

had reason to know of the plaintiff’s disability; and (5) the position 

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remained open while the employer sought other applicants or the 

disabled individual was replaced. Hedrick v. W. Reserve Care Sys., 355 

F.3d 444, 453 (6th Cir. 2004). If the plaintiff meets this burden, then 

the defendant must offer a legitimate explanation for its action. Id. If 

the defendant does, then the plaintiff must introduce sufficient evidence 

to show that the proffered explanation is pretextual. Id. The plaintiff 

retains the ultimate burden of persuasion at all times. Id. 

Defendant argues that plaintiff was not qualified for the foreman 

position, and that defendant had a legitimate, non-discriminatory 

reason for its actions that were not pre-textual. (Dkt 19 at 26-30.)2 

Defendant cites the job posting itself, which lists the following as the 

“essential functions” of the job: 

Plans, organizes, directs and coordinates maintenance and 

repair of streets, storm sewers, sanitary sewers, water lines, 

 

2 Defendant does not contest that plaintiff is disabled, and agrees with plaintiff that 

he cannot lift over fifty pounds, cannot reach above his shoulders, and cannot 

repetitively use his right arm. However, it is unclear whether plaintiff has 

established a disability as defined in the ADA or ADA Amendments Act. See, e.g., 

Anderson v. Inland Paperboard & Packaging, 11 F. App’x 432, 437 (6th Cir. 2001) 

(holding that plaintiff “failed to establish that any major life activities were 

substantially limited by his shoulder impairment,” because there was “no evidence 

that this injury prevented [plaintiff] from performing ‘a class of jobs’ or a ‘broad 

range of jobs in various classes’”); McKay v. Toyota Motor Mfg. U.S.A., 110 F.3d 

369, 370-71, 374 (6th Cir. 1997) (employee who was restricted from lifting weights 

of less than ten pounds, pushing or pulling, using vibrating tools, and making 

repetitive motions with her right hand was not disabled under the ADA). It is not 

necessary to decide this issue, because plaintiff’s claim fails on other grounds. 

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hydrants, parkways, and other public works facilities[;] 

Receives and investigates complaints from property owners 

and the public concerning the work of the crews and the 

conditions that need to be repaired[;] Participates in the 

preparation of the annual budget and capital improvement 

program; monitors the budget[;] Maintains inventory of 

supplies and equipment[;] Prepares or approves requisitions 

and specifications for purchases and contractual services[; 

and] Develops preventive maintenance and inspection 

policies and procedures for the maintenance of streets, water 

lines, sewers, hydrants, valves, pumps, and other public 

works and utility facilities. 

(Dkt. 19-6 at 2-3.) 

Defendant also notes that the person who was selected for the 

position had “15 years of experience in the Water Department and 7 

years of experience in the Department of Public Service,” as well as 

holding “an S-2 certification from the State of Michigan.” (Dkt. 19 at 

27.) Defendant argues that as a “building maintenance” employee with 

“minimal experience working in the Water Department,” plaintiff’s 

skills were “simply not in line with the position.” (Id.) 

Plaintiff argues that he was in fact qualified, and notes that 

defendant “cited to NO testimony illustrating that [p]laintiff was not 

qualified for the position.” (Dkt. 22 at 13.) But it is plaintiff’s burden to 

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show that he was qualified, not defendant’s burden to show that he was 

not. See Hedrick, 355 F.3d at 453. 

Plaintiff notes that “two employees were promoted as to the job 

posting for only one position.” (Id. (underline in original).) And plaintiff 

testified in his deposition that the union steward told him that HR 

Director Wood “stated that [p]laintiff would be allowed to interview for 

the position, gave [p]laintiff a time limit, and [p]laintiff turned in his 

application on time.” (Id. at 14 (citing Dkt. 19-2 at 13 (plaintiff’s 

deposition)) (underline in original).)3 Plaintiff also testified that he had 

never been assigned to the Water Department or worked there full 

time, but had “worked in the Water Department a few times on 

overtime.” (Dkt. 19-2 at 15.) Finally, plaintiff cites his own affidavit for 

the proposition that when he “reviewed the posting for the position [he] 

saw nothing in the job description that would disqualify [him] from 

eligibility except possibly reaching over [his] head.” (Dkt. 22-4 at 2.) 

 

3 It is unclear whether the double-hearsay statement from HR Director Wood is 

admissible evidence. “As a general rule, ‘evidence submitted in opposition to a 

motion for summary judgment must be admissible. Hearsay evidence . . . must be 

disregarded.’” Beckett v. Ford, 384 F. App’x 435, 442 (6th Cir. 2010) (quoting Alpert 

v. United States, 481 F.3d 404, 409 (6th Cir. 2007)). Even if HR Director Wood’s 

statement might be excluded from hearsay as an opposing party’s statement, Fed. 

R. Evid. 801(d)(2), there is no reason to think that Kyle Major’s statement about 

what HR Director Wood said could similarly be attributed to defendant. 

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According to plaintiff, this evidence is sufficient that “it can be inferred 

that [p]laintiff was qualified for the position.” (Dkt. 22 at 14.) 

Plaintiff’s own conclusory assertions are insufficient to establish 

that he was “otherwise qualified” for the position under the McDonnell 

Douglas framework. See, e.g., Knapp v. City of Columbus, Nos. C2-CV01-255, C2-CV-02-1221, C2-CV-04-203, 2005 U.S. Dist. LEXIS 42897, at 

*35 (S.D. Ohio Feb. 16, 2005) (“[C]onclusory statements[, such as 

providing] that he is a qualified individual with a disability as defined 

by the ADA . . . . are insufficient as a matter of law and are insufficient 

to avoid summary judgment.”); Anthony v. United Tel. Co., 277 F. Supp. 

2d 763, 773 (N.D. Ohio 2002) (“In support of her claim that she was 

qualified for these positions, [plaintiff] relies only on her own affidavit 

. . . . [Her] conclusory statement, however, is not sufficient evidence 

from which a trier of fact could conclude that she was qualified for these 

positions.”); Kleiber v. Honda of Am. Mfg., 420 F. Supp. 2d 809, 825 

(S.D. Ohio 2006) (“Plaintiff’s own personal observations and conclusory 

opinions that he could perform work at Honda are not enough to 

withstand summary judgment in the face of evidence to the contrary.”); 

see also Boback v. GMC, No. 95-3836, 1997 U.S. App. LEXIS 297, at *11 

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(6th Cir. Jan. 3, 1997) (“[Plaintiff] offers only his personal observation 

that he could perform such work. . . . Accordingly, because [plaintiff] 

has failed to establish that he was a ‘qualified individual with a 

disability’ with respect to these three positions, the district court 

properly granted summary judgment in favor of the Defendants.”). 

Because plaintiff fails to set forth sufficient evidence from which a 

trier of fact could find that he was “otherwise qualified” for the Water 

Department Foreman position, he has not met his burden and his 

discrimination claim is dismissed.

b. Pre-EEOC filing retaliation claim 

Plaintiff claims that defendant retaliated against him by (a) 

declining to post the announcement or interview him for the Water 

Department Foreman position and (b) eliminating his position in the 

Parks and Recreation Department and transferring him to City Hall. 

Plaintiff claims that defendant did so because he had testified in 

Cassandra Parks’ case in 2012 and because he had complained to 

defendant that defendant had discriminated against him based on his 

disability. 

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To establish a prima facie case of retaliation under Title VII, 

plaintiff must establish that: “(1) he engaged in activity protected by 

Title VII; (2) his exercise of such protected activity was known by the 

defendant; (3) thereafter, the defendant took an action that was 

‘materially adverse’ to the plaintiff; and (4) a causal connection existed 

between the protected activity and the materially adverse action.” 

Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). 

Defendant argues that plaintiff’s pre-EEOC filing retaliation 

claim fails because his reassignment to City Hall was not a “materially 

adverse” action, and in any case he cannot establish a causal connection 

between his testimony in Cassandra Parks’ case in 2012 and the 

decision to transfer him in early 2014. (Dkt. 19 at 30-35.) Plaintiff 

responds that his transfer to City Hall, the failure to post the 

announcement in his workplace or interview him for the Water 

Department Foreman position, and his termination were all adverse 

employment actions. (Dkt. 22 at 23-24.)4

 

4 Plaintiff’s response deals with both the pre-EEOC filing and post-EEOC filing 

claims together, and it is often unclear in the response which argument applies to 

which claim. Count II of plaintiff’s amended complaint (the pre-EEOC filing 

retaliation claim) only lists his transfer to City Hall and the failure to post or 

interview plaintiff for the foreman position as the adverse actions taken by 

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First, defendant’s decision to transfer plaintiff to City Hall was 

not a “materially adverse” employment action for purposes of the ADA. 

“Reassignments without changes in salary, benefits, title, or work hours 

usually do not constitute adverse employment actions.” Policastro v. 

Nw. Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002). Here, the only 

change in the conditions of plaintiff’s employment was that the hours 

for his new position were 7:30 AM to 4:00 PM rather than 6:00 AM to 

2:30 PM, which were his hours when he was in the Parks and 

Recreation Department. Although plaintiff testified that he would no 

longer be able coach football, he also testified that he was not coaching 

football at the time. (See Dkt. 19-2 at 6, 19.) Under these 

circumstances, a trier of fact could not find that this change would 

“deter a reasonable employee from complaining about discrimination.” 

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006). 

Plaintiff argues that defendant transferred him to City Hall 

intending to put him in direct contact with Mensinger and force him to 

quit. (Dkt. 22 at 19-20, 31-32.) But even if plaintiff subjectively felt 

that to be the case, plaintiff fails to set forth sufficient evidence that 

 

defendant. (Dkt. 11 at 9-12.) Thus plaintiff’s termination is not considered for the 

purposes of this claim. 

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putting him in contact with Mensigner was a materially adverse term 

or condition of employment. The standard is whether a “reasonable

employee would have found the challenged action materially adverse.” 

Burlington N. & Santa Fe Ry., 548 U.S. at 68 (emphasis added). “At 

most, [p]laintiff offers h[is] testimony that []he feared or did not like 

certain coworkers; but this is not the type of conduct Title VII is 

designed to redress.” See Goodsite v. Norfolk S. Ry., 573 F. App’x 572, 

584 (6th Cir. 2014). Even assuming that plaintiff’s subjective concern 

was objectively reasonable, plaintiff’s refusal to meet with supervisors 

to discuss his concern is not the “reaction[] of a reasonable employee.” 

See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). 

And plaintiff cannot show that declining to post the job 

announcement in his workplace or interview him for the Water 

Department Foreman position was a materially adverse employment 

action, because as set forth above, plaintiff fails to establish that he was 

qualified for the position. It is difficult to see how depriving plaintiff of 

notice or the opportunity to interview for an open position, if true, was a 

materially adverse employment action if plaintiff cannot establish that 

he was otherwise qualified for that position. See, e.g., Moore v. Abbott 

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Labs., 780 F. Supp. 2d 600, 617 (S.D. Ohio 2011) (rejecting plaintiff’s 

argument that “failure to interview him constituted disparate 

treatment,” in part because it was “undisputed that [he] lacked the 

requisite . . . experience”). Just as a “failure to promote” discrimination 

claim requires the plaintiff to be “qualified for the promotion,” Nguyen 

v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000), a defendant’s 

action underlying a “failure to promote” retaliation claim can only be 

materially adverse if plaintiff were otherwise qualified for the position. 

Even if plaintiff had established that he were qualified for the 

Water Department Foreman position, he fails to set forth sufficient 

evidence that the relevant decisionmakers knew that he had engaged in 

protected activity by testifying in Cassandra Parks’ Title VII case.5 

Plaintiff cites a recorded conversation purportedly between him and 

Mensinger, in which Mensinger “specifically stated that [defendant] 

was going to retaliate against [p]laintiff because of his testimony[,] 

 

5 Only plaintiff’s testimony in the Cassandra Parks lawsuit may be considered 

protected activity with regard to the claim that defendant retaliated against him by 

declining to post the job announcement in his workplace or interview him for the 

foreman position. A claim of retaliation for engaging in the protected activity of 

complaining about an incident of unlawful discrimination cannot be based on the 

act of discrimination that was supposed to have caused the retaliation. That is, 

plaintiff cannot claim that he was first discriminated against, then that the 

discrimination was also retaliation for complaining about the discrimination. 

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which was adverse to [defendant] in the Cassandra Parks’ [sic] lawsuit.” 

(Dkt. 22 at 24.) 

But plaintiff testified that HR Director Wood and DPS Director 

Morton were not employees at the time plaintiff testified in Cassandra 

Parks’ suit in 2012. (Dkt. 19-2 at 9-10.) And plaintiff testified that he 

did not “have any knowledge or information or reason to believe that” 

City Administrator Folks, Director of Public Works Tom Wilson, 

Emergency Manager Parker, or HR Director Wood “were aware of 

[plaintiff’s] testimony” in the Cassandra Parks case. (Dkt. 19-2 at 9-10.) 

Even accepting that he engaged in protected activity, it is plaintiff’s 

burden to establish that “his exercise of such protected activity was 

known by the defendant.” Laster, 746 F.3d at 730. Because plaintiff 

fails to set forth evidence that the relevant decisionmakers were aware 

of his testimony, plaintiff fails to meet his burden. 

Plaintiff fails to set forth sufficient evidence for a trier of fact to 

find that his transfer to City Hall or the decision not to post about or 

interview him for the foreman position were “materially adverse” 

actions. Moreover, plaintiff fails to set forth sufficient evidence for a 

trier of fact to find that the relevant decisionmakers were aware that he 

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had testified in Cassandra Parks’ Title VII case. The pre-EEOC filing 

retaliation claim must therefore be dismissed. 

c. Post-EEOC retaliation claim 

Plaintiff claims that defendant terminated him in retaliation for 

filing a charge of discrimination with the EEOC, in which plaintiff 

complained that he had been “denied a promotion” to Water 

Department Foreman “due to [his] disability.” Defendant argues that 

there is no causal connection between plaintiff’s EEOC complaint and 

his termination. (Dkt. 19 at 35-36.) Plaintiff responds that the causal 

connection is evidenced by the timing of his termination “[w]ithin about 

45 days of the filing of t[he] EEOC complaint,” City Administrator 

Folks’ testimony in which plaintiff argues she lied about whether she 

knew of his work restrictions,6 Emergency Manager Parker’s “practice 

of retaliation” as shown by other cases, City Administrator Folks’ claim 

that “she did not understand the question” when asked if she were “part 

of [plaintiff]’s position being eliminated,” and City Administrator Folks’ 

 

6 Specifically, plaintiff argues that “[i]f Ms. Folks did not retaliate against [plaintiff] 

because he filed his EEOC complaint, she would have no reason to disguise the fact 

that she was aware of [plaintiff’s] work restrictions.” (Dkt. 22 at 26-27.) 

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general refusal to legitimately respond to plaintiff’s safety concerns 

regarding Mensinger. (Id. at 24-37.) 

Viewing the evidence in the light most favorable to plaintiff, it is 

difficult, if not impossible, to understand how the cited testimony of 

City Administrator Folks is evidence that defendant acted with a 

retaliatory motive when terminating plaintiff. Assuming that City 

Administrator Folks lied about whether she was aware of plaintiff’s 

work restrictions and whether she was a part of the decision to 

eliminate plaintiff’s position at the Parks and Recreation Department, 

such evidence is unrelated to whether defendant was motivated to 

terminate plaintiff based on plaintiff filing a charge of discrimination 

with the EEOC. 

And as set forth above, plaintiff did not act in an objectively 

reasonable manner regarding his safety concerns. Even if it were 

reasonable for plaintiff to fear for his safety, given his history with 

Mensinger, it was unreasonable to refuse to meet with his supervisors 

to address those concerns. Assuming that the temporal proximity 

between plaintiff filing the charge of discrimination with the EEOC and 

plaintiff’s termination would give rise to an inference of unlawful 

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retaliation, plaintiff’s subsequent decision not to report to work negates 

such an inference. “[A]n intervening legitimate reason to take an 

adverse employment action dispels an inference of retaliation based on 

temporal proximity.” Kuhn v. Washtenaw County, 709 F.3d 612, 628 

(6th Cir. 2013). 

Plaintiff unreasonably refused to return to work after filing his 

charge of discrimination with the EEOC, and he has not refuted the 

evidence of defendant’s legitimate reason to terminate his employment. 

Plaintiff’s post-EEOC claim of retaliation must therefore be dismissed. 

IV. Conclusion 

For the reasons set forth above, defendant’s motion for summary 

judgment (Dkt. 19) is GRANTED. 

 IT IS SO ORDERED. 

Dated: July 5, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

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ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 5, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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