UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ERIC SANTIFER, 

 Plaintiff, 

v. 

INERGY AUTOMOTIVE 

SYSTEMS, LLC. et al., 

 Defendants. 

 

Case No. 5:15-cv-11486 

District Judge Judith E. Levy 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 29)

I. RECOMMENDATION: The Court should grant Defendant’s motion for 

summary judgment and dismiss this action in its entirety. (DE 29.) 

II. REPORT 

 A. Procedural Background 

Plaintiff, Eric Santifer, is proceeding without the assistance of counsel. He 

filed his complaint and application to proceed without prepayment of fees on April 

24, 2015. (DE 1 and 2.) The Court granted his application on April 29, 2015. (DE 

4.) In his complaint, Plaintiff asserts that his former employer, Inergy Automotive 

Systems (USA), L.L.C. (now Plastic Omnium-Auto Inergy USA, L.L.C.) (“Inergy 

Automotive” or “Defendant”), wrongfully terminated him on the basis of racial 

discrimination, in violation of Title VII, 42 U.S.C. § 2000e-2. He seeks monetary 

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damages in the amount of $2 million for lost wages, including salary, estimated 

over time, cost of living adjustments, benefit expenses, and “wrongful 

termination.” (DE 1 at 4.) 

 Defendant filed this motion for summary judgment on May 31, 2016. (DE 

29.) Defendant first argues that Plaintiff’s lawsuit is untimely because he received 

his Notice of Right to Sue letter (“RTS”) from the Equal Employment Opportunity 

Commission (“EEOC”) more than 90 days before filing his complaint. In the 

alternative, Defendant asserts that Plaintiff was terminated, per company policy, 

after a human resources investigation concluded that he had attempted to 

intimidate another employee through physical contact, and not on the basis of his 

race. Specifically, Defendant argues that Plaintiff fails to establish a prima facie 

case of race discrimination because he cannot demonstrate that he was treated less 

favorably than similarly-situated individuals outside his protected class. Moreover, 

Defendant argues, even if Plaintiff could establish a prima facie case, he cannot 

establish pretext as a matter of law. Finally, Defendant contends that Plaintiff’s 

claim against Rebbeck must be dismissed because individual employees may not 

be held personally liable under Title VII. The motion is supported by citations to 

Plaintiff’s own deposition testimony, and by the attached declarations of James 

Rebbeck (DE 29-5), Melissa Farrell (DE 29-6), and Le Hoang (DE 29-7). 

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 Plaintiff opposes the motion. In his unsworn response, he asserts that he 

timely filed the instant action because, despite being contacted by the EEOC office 

on January 14, 2015 to inform him that they would be mailing the RTS letter the 

following day, he did not actually receive the document until January 26, 2015, the 

day that he picked it up from his Post Office Box after being out of town. In 

addition, Plaintiff explains that the results of Defendant’s investigation were 

incorrect and maintains that he never attempted to intimidate another employee 

through physical contact. Instead, Plaintiff argues that the other employee’s 

actions were “racist, irresponsible, intentional, and absolutely untrue.” (DE 37 at 

10.) He asserts that he can establish that he was treated less favorably than 

similarly-situated white employees, by providing an unsworn narration in the body 

of his brief about a confrontation between two white employees that “nearly came 

to blows,” but which resulted in both employees keeping their jobs. (Id. at 11.) 

 Defendant filed a reply on July 19, 2016, in which it maintains that, even 

accepting Plaintiff’s version of the facts as true, there are no genuine disputes of 

material fact precluding a grant of summary judgment in this matter. (DE 42.) 

Defendant also points to Plaintiff’s admission that he was aware the RTS letter was 

being mailed on January 15, 2015 as further proof that his lawsuit was untimely 

filed. 

 B. Factual Background 

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 1. Plaintiff’s Tenure at Inergy Automotive1

 Inergy Automotive hired Plaintiff on July 14, 2014 as a probationary 

Manufacturing Operations Leader (“MOL”). (DE 29-2 at 73-74.)2

 The 

probationary period was to last six weeks, and involved training on first and third 

shifts, despite being hired for the second shift. (Id. at 81-82.) The incident that led 

to Plaintiff’s termination occurred during the week of August 11, 2014, when 

Plaintiff was training with fellow MOLs James Rebbeck and Le Hoang. (Id. at 

120.) On the second night of the work week, Plaintiff apparently arrived fifteen 

minutes late, leading to Rebbeck and Hoang “very jokingly” commenting on his 

tardiness. (Id.) The following night, Plaintiff again arrived late (despite leaving 

for work five minutes earlier than the night before). When he walked in, Rebbeck 

questioned Plaintiff’s tardiness and said something to the effect of “you understand 

that you have a responsibility to be here before the shift and you know you have to 

set an example.” (Id. at 132.) Plaintiff does not dispute that he took issue with 

Rebbeck’s statements, noting that he responded,“Why are we having this 

conversation? You’re not my supervisor.” (Id.) Plaintiff testified that after that, he 

                                                            

1

 Much of the factual background here is taken from Plaintiff’s deposition 

testimony. In his response to the motion for summary judgment, Plaintiff specifies 

that he agrees with Defendant’s version of the “initial hiring and training 

information.” (DE 37 at 6.) 

2

 When citing to Plaintiff’s deposition, I will use the page numbers provided by 

Defendant. In all other citations, I will use the page number at the top of the page, 

provided by the CM-ECF system. 

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did not speak to Rebbeck again until about 7:00 the next morning, when he put his 

right hand out and patted him on the shoulder with his left hand, stating “Jim, we 

have to work together. Let’s put this situation behind us.” (Id. at 133-34.) 

 2. Inergy Automotive’s Investigation 

 Following the August 13, 2014 incident, Rebbeck complained to Human 

Resources Manager, Melissa Farrell, and emailed his written statement about the 

incident to her on August 14, 2014. (DE 29-3.) Rebbeck’s account of the incident 

differs from Plaintiff’s. Specifically, he asserted to Farrell (and reiterates in his 

sworn declaration) that Plaintiff “put his hands on my shoulder . . . and said ‘OK, 

listen!” during the initial confrontation. (DE 29-5 at ¶ 7e.) He also indicates that, 

following the incident, Hoang told him that Plaintiff commented that Rebbeck was 

“not going to speak to him like he was some ‘black boy.’” (DE 29-3 at 2.) 

 Farrell also asked Hoang to provide a written statement, which he did via 

email on August 14, 2014. (DE 29-4.) Mr. Hoang explained that Plaintiff 

responded to their comments about his tardiness in a “very poor manner,” but that 

he did not witness any physical confrontation between Rebbeck and Plaintiff. He 

also reiterated Plaintiff’s comment about being treated like a “little black boy.” 

(Id. at 2.) In his sworn declaration, Hoang avers that the email statement to Farrell 

was a “true and accurate record” of what he observed on August 13, 2014. (DE 

29-7 at ¶¶ 6-7.) 

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 Farrell then reached out to Plaintiff by telephone that evening. (DE 29-8; 

DE 29-6 at ¶ 7.) During their conversation, Plaintiff denied ever “putting his hands 

on [Rebbeck] at all.” (Id. at 3.) Farrell described him as being “adamant that no 

physical contact w[ith] violent intentions occurred.” (Id. at 4.) However, in an 

August 18, 2014 statement, Plaintiff changed his story slightly, indicating that 

while he did “not recall ever touching Mr. Rebbeck,” he may have “gently pa[tt]ed 

him on his arm.” (DE 29-6 at ¶ 8.) Finally, on August 19, 2014, MOL Penny 

Garver provided a statement in which she noted that she had previously 

complained to her supervisor about Plaintiff’s “lack of commitment, willingness to 

learn, and dependability,” specifically pointing to his tardiness during his 

probationary period. (DE 29-6 at ¶ 9.) 

 Based on her investigation, Farrell concluded that Plaintiff “put his hands on 

Rebbeck.” (DE 29-6 at ¶ 11.) She avers that she “honestly believed” Plaintiff had 

attempted to intimidate Rebbeck through physical contact, in violation of company 

policy. (Id. at ¶¶ 12-13.) After obtaining approval from Mikel Slater, the Vice 

President of Human Resources, Farrell made the decision to terminate Plaintiff. 

 3. The EEOC Process 

 After he was terminated, Plaintiff filed a complaint with the EEOC. As part 

of his complaint in the instant action, Plaintiff provides an RTS letter from the 

EEOC dated January 14, 2015. (DE 1 at 5.) Handwritten below the date is a note 

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that Plaintiff received the document on January 26, 2015 at 2:40 p.m. (Id.) In his 

unsworn response to Defendant’s motion, Plaintiff explains that, on January 14, 

2015 he was contacted by the EEOC and informed that the agency would be 

mailing its RTS letter the following day. (DE 37 at 10.) Accordingly, he checked 

his current address, a P.O. Box in Romeoville, Illinois, on January 17, 2015 and 

the letter had not arrived. He was not able to check the P.O. Box again until 

Monday, January 26, 2015, at which time he “received” the letter, finally having it 

actually in hand. The letter stated the following: 

You may file a lawsuit against the respondent(s) under federal law 

based on this charge in federal or state court. Your lawsuit must be 

filed WITHIN 90 DAYS of your receipt of this notice, or your right 

to sue based on this charge will be lost. 

(DE 1 at 5, emphasis in original.) He then commenced the instant action on April 

24, 2015, 100 days after January 15, 2015 and 89 days after January 26, 2015. 

 C. Standard 

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary 

judgment if 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). A fact is material if it might affect the outcome of the case under governing 

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court 

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

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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) (internal citations omitted). 

 “The moving party has the initial burden of proving that no genuine issue of 

material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 

(6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56 (e)(2) 

(providing that if a party “fails to properly address another party’s assertion of 

fact,” then the court may “consider the fact undisputed for the purposes of the 

motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the 

nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC 

v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving 

party must “make an affirmative showing with proper evidence in order to defeat 

the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also 

Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 435, 441 (6th Cir. 

2011) (“The nonmovant must, however, do more than simply show that there is 

some metaphysical doubt as to the material facts . . . . [T]here must be evidence 

upon which a reasonable jury could return a verdict in favor of the non-moving 

party to create a genuine dispute.”) (internal quotation marks and citations 

omitted). Summary judgment is appropriate when “a motion for summary 

judgment is properly made and supported and the nonmoving party fails to respond 

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with a showing sufficient to establish an essential element of its case. . . .” 

Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 371, 322-23 

(1986)). 

 D. Discussion 

 I will address each of Defendant’s arguments in turn. However, because I 

find that Plaintiff’s lawsuit is barred as untimely, I will only briefly address the 

claim of race discrimination as a matter of law. 

 1. Timeliness of Plaintiff’s Complaint 

 Defendant first argues that Plaintiff’s lawsuit should be barred as untimely 

because it was filed more than 90 days after receipt of notice of final action taken 

by the EEOC. Pursuant to Title VII, the time for bringing a civil action by an 

employee for redress of grievances is “[w]ithin 90 days of receipt of notice of final 

action . . . .” 42 U.S.C. § 2000e-16(c). Failure to commence an action within the 

prescribed time period bars a suit under Title VII. Gibson v. Shelly Co., 314 F. 

App’x 760, 767 (6th Cir. 2008). The Sixth Circuit has explained that the ninetyday period commences when: 

notice is given, and hence the ninety-day limitations term begins 

running, on the fifth day following the EEOC’s mailing of an RTS 

notification to the claimant’s residential address, by virtue of a 

presumption of actual delivery and receipt within that five-day 

duration, unless the plaintiff rebuts that presumption with proof that 

he or she did not receive notification within that period. 

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Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557-

58 (6th Cir. 2000) (emphasis in original). Accordingly, this Circuit recognizes 

constructive receipt of the RTS, noting that a “more lenient rule would illicitly 

license a Title VII claimant to indefinitely extend limitations by avoiding 

acceptance of an RTS notice.” Id. at 558-560. Under the Sixth Circuit’s “Five 

Day Rule,” Plaintiff is charged with receiving the RTS letter on January 20, 2015, 

five days after it was placed in the mail and 94 days before his lawsuit was filed. 

 In his motion response, Plaintiff concedes that he was actually informed that 

his RTS was being mailed to his address on January 15, 2015. (DE 37 at 10.) 

Even calculating receipt from that day plus five, he would have “constructively 

received” the notice on January 20, 2015 and filed his lawsuit 94 days later, on 

April 24, 2015. Although Plaintiff has seemingly attempted to rebut the 

presumption that he received the document before January 26, 2015 by 

handwriting that date on his RTS, he has in fact done the opposite by admitting 

that he was aware, on January 14, 2015, that the RTS letter was being mailed to 

him the following day. See Graham, 209 F.3d at 559 (noting that the pro se 

plaintiff was properly charged with notice where she “indisputably knew that her 

RTS notice would be proximately arriving by United States mail.”). Accordingly, 

no matter how one slices it, Plaintiff filed his lawsuit more than 90 days after 

receiving his RTS letter. 

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 2. Equitable Tolling

 Although Plaintiff does not attempt to make an equitable tolling argument, 

and the Court is not required to consider it, I will address it here for the purposes of 

completeness, particularly in light of his pro se status. Filing a timely charge of 

discrimination is “subject to waiver, estoppel, and equitable tolling.” Zipes v. 

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). However, equitable relief is 

extended “only sparingly in suits against private litigants . . . .” Irwin v. Dept. of 

Veterans Affairs, 482 U.S. 89, 90 (1990). The Sixth Circuit has identified the 

following five factors for courts to consider when determining the appropriateness 

of equitably tolling a statute of limitations: 

1) lack of notice of the filing requirements; 2) lack of constructive 

knowledge of the filing requirements; 3) diligence in pursuing one’s 

rights; 4) absence of prejudice to the defendant; and 5) plaintiff’s 

reasonableness in remaining ignorant of the particular legal 

requirement. 

Truitt v. Cty. Of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). 

 Here, four of the five factors weigh strongly against allowing equitable 

tolling in this instance. First, the RTS letter itself stated the following on its face: 

You may file a lawsuit against the respondent(s) under federal law 

based on this charge in federal or state court. Your lawsuit must be 

filed WITHIN 90 DAYS of your receipt of this notice, or your right 

to sue based on this charge will be lost. 

(DE 1 at 5, emphasis in original.) Plaintiff cannot reasonably argue that he was 

unaware of the 90-day filing requirements. In fact, he filed his complaint exactly 

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89 days after the date he purports to have had the document in hand and thus 

“received” it, indicating that he was well aware of the impending deadline. 

 Second, as addressed in the previous section, Plaintiff had more than 

constructive knowledge that the RTS was mailed on January 15, 2015; he had 

actual knowledge. 

 Third, construing Plaintiff’s filing in the light most favorable to him, he 

showed some degree of diligence in filing his lawsuit very close to the 90-day 

deadline, yet need not have filed his case so close to the wire after previously 

presenting it at the administrative level, even by his own miscalculation. “Absent 

compelling equitable considerations, a court should not extend limitations by even 

a single day.” Graham, 209 F.3d at 561. 

 Fourth, and the only factor weighing somewhat in Plaintiff’s favor, 

Defendants have not shown that they will be prejudiced by allowing equitable 

tolling of Plaintiff’s claims. They have defended the case to this point and have 

addressed the merits of Plaintiff’s case in the instant motion for summary 

judgment. On the other hand, they incur significant expense in bringing this case 

to trial and suffer the loss of what would normally be a complete defense should 

equitable tolling be applied. 

 Finally, it was not reasonable for Plaintiff to remain ignorant of the 90-day 

deadline, which was stated in bold-faced type on his RTS letter. Even Plaintiff’s 

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status as a pro se litigant cannot cure this defect. Id. at 561 (“even a pro se litigant 

. . . is required to follow the law. In particular, a willfully unrepresented plaintiff 

volitionally assumes the risks and accepts the hazards which accompany selfrepresentation) (emphasis in original). 

 Accordingly, Plaintiff’s lawsuit is barred as untimely. As such, I 

recommend granting Defendant’s motion for summary judgment. However, I will 

briefly address the remainder of Defendant’s arguments, as I also find that the 

motion could be granted on the merits of the case. 

 3. The McDonnell Douglas Framework 

 “The McDonnell Douglas/Burdine formula is the evidentiary framework 

applicable . . . to claims brought under Title VII . . . .” Mitchell v. Toledo Hosp., 

965 F.2d 577, 582 (6th Cir. 1992). Following that framework, in order to make out 

a claim of race discrimination under Title VII, a plaintiff must first establish a 

prima facie case of discrimination, which varies depending on the specific facts of 

the case. Tartt v. Wilson Cnty., Tenn., 592 F. App’x 441, 445 (6th Cir. 2014) 

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Plaintiff 

can establish a prima facie case here by showing that he: (1) is a member of a 

racial minority; (2) was discharged from his position of employment; (3) was 

qualified for the position; and (4) was replaced by a person outside the class or a 

comparable non-protected person was treated better. Mitchell, 964 F.2d at 582; see 

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also Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001) (applying 

the McDonnell Douglas framework to a race discrimination case). 

If a plaintiff establishes a prima facie case of discrimination, the burden 

shifts to the defendant to provide a legitimate, non-discriminatory reason for the 

employment decision. McDonnell Douglas, 411 U.S. at 802. Finally, if the 

defendant offers such a reason, the burden returns to the plaintiff to show that the 

proffered reason is merely a pretext for discrimination. Id. at 804. 

The burden of persuasion rests with the plaintiff at all times. Hunter v. Sec’y 

of the Army, 565 F.3d 986, 996 (6th Cir. 2009). To meet this burden in the Title 

VII context, a plaintiff must demonstrate that race was a “motivating factor” in the 

employer’s discriminatory action. Lewis v. Humboldt Acquisition Corp., 681 F.3d 

312, 318 (6th Cir. 2012). 

 a. Plaintiff Fails to Make a Prima Facie Case of 

 Discrimination 

Here, Plaintiff makes no showing that he was replaced by a person outside 

the class. He also cannot establish that a similarly situated non-protected person 

received more favorable treatment than he. The Sixth Circuit has described the 

“similarly situated” element as follows: 

To be deemed “similarly situated,” the individuals with whom the 

plaintiff seeks to compare his/her treatment must have dealt with the 

same supervisor, have been subject to the same standards and engaged 

in the same conduct without such differentiating or mitigating 

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circumstances that would distinguish their conduct or the employer’s 

treatment of them for it. 

Mitchell, 964 F.2d at 583 (internal quotations and citations omitted). This requires 

“that the plaintiff demonstrate that he or she is similarly-situated to the nonprotected employee in all relevant respects.” Ercegovich v. Goodyear Tire & 

Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998) (emphasis in original). 

In an attempt to do so in his unsworn response—which in turn appears to be 

quoting his own statement to the EEOC—Plaintiff points to a situation in which 

two white employees “nearly came to blows” but were not fired. (DE 37 at 11.) 

He provides no admissible evidence that the HR manager or anyone with 

disciplinary authority was aware of this. Moreover, Defendant points to Plaintiff’s 

deposition testimony, in which he admits that, in the situation he described, there 

was “no allegation that somebody had physically touched another.” (DE 42-2 at 

116.) In contrast, there was an allegation of physical touching in this case, 

distinguishing the two circumstances and Defendant’s treatment of them. Further, 

HR manager Farrell avers that in a more comparable situation in 2014, a white 

production operator’s employment was terminated after he was accused of (and 

likewise denied) pushing a fellow employee. (DE 29-6 at ¶¶ 17-19.) She also 

notes that the company has a “zero tolerance approach to any type of workplace 

violence or intimidation.” (Id. at ¶ 13.) As such, even if Plaintiff had timely filed 

his complaint, he fails to establish a prima facie case of discrimination. 

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 b. Plaintiff Fails to Rebut Defendant’s Legitimate, Non- 

 Discriminatory Reasons for His Termination

 Even if Plaintiff could make a prima facie case, Defendant has presented 

records and testimony which support legitimate, non-discriminatory reasons for 

terminating his employment. Most convincing is Plaintiff’s deposition testimony, 

in which he admits the following: 

Q: [Y]ou knew that if you had done what was alleged, that you put 

 your hands on him in a confrontational manner, that would be a 

 mistake? 

A: Absolutely. 

Q. And you knew that that would be a violation of the company’s 

 policy for which you could be terminated? 

A. Absolutely. 

(DE 29-2 at 137.) Terminating an individual’s employment based on a violation of 

the company’s policy is a legitimate, nondiscriminatory reason for Plaintiff’s 

termination “‘which if believed by the trier of fact, would support a finding that 

unlawful discrimination was not the cause of the employment action.”’ Wright v. 

Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006) (quoting St. Mary’s Honor 

Ctr. v. Hicks, 509 U.S. 502, 507 (1993)); see also Jones v. Potter, 488 F.3d 397, 

407 (6th Cir. 2007) (employer’s proffered reason for terminating an employee was 

not pretextual where he was accused of an altercation with a coworker). 

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 Accordingly, Plaintiff must present evidence sufficient to establish that 

Defendant’s proffered reasons were mere pretext for discrimination in order to 

defeat its motion for summary judgment. The Sixth Circuit provides that a 

plaintiff may establish that the employer’s proffered reason was mere pretext by 

showing: 

1) the stated reasons had no basis in fact; 

2) the stated reasons were not the actual reasons; and 

3) that the stated reasons were insufficient to explain the 

 defendant’s actions. 

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000). “But 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 Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Furthermore, “the aim is not to . . . 

question the soundness of an employer’s judgment,” where an employee is not 

performing to the employer’s satisfaction. McDonald v. Union Camp Corp., 828 

F.2d 1155, 1160 (6th Cir. 1990). 

 Here, Plaintiff has merely presented conjecture and speculation that 

Defendant’s proffered reason to terminate him was pretext for racial 

discrimination. For example, he cites his Christian values, professional and 

administrative experiences, and educational and athletic background as evidence 

that he did not physically threaten Rebbeck. Such assertions are not sufficient to 

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survive summary judgment. See Brennan Tractor Supply Co., 237 F. App’x 9, 19-

20 (6th Cir. 2007) (“[M]ere conjecture that [the] employer’s explanation is a 

pretext for intentional discrimination is an insufficient basis for denial of summary 

judgment . . . . [A] court may not reject an employer’s explanation [of its actions] 

unless there is sufficient basis in the evidence for doing so.” (internal citations 

omitted)); Metz v. Titanium Metals Corp., 475 F. App’x 33, 36 (6th Cir. 2012) 

(plaintiff’s disagreement with defendant’s assessment of his or her value does not 

evidence discrimination). In contrast, Defendant has provided a sworn statement 

from the individual who made the decision to terminate Plaintiff in which she 

states that she “honestly believed” Plaintiff had attempted to intimidate Rebbeck 

through physical contact, in violation of company policy. (DE 29-6 at ¶¶ 12-13.) 

Defendant also provides Plaintiff’s deposition testimony, in which he admits that 

he in fact touched Rebbeck’s shoulder with his left hand, despite denying any 

contact with Rebbeck when Farrell conducted her investigation. (DE 29-2 at 134, 

¶¶ 1-4.) Moreover, even if Farrell’s “honest belief” were factually mistaken, this 

would not establish pretext, as a mere mistake in meting out discipline is not 

actionable under Title VII. See Majewski v. Automatic Data Processing, Inc., 274 

F.3d 1106, 1117 (6th Cir. 2001) (noting that “as long as an employer has an honest 

belief in its proffered nondiscriminatory reason for discharging an employee, the 

employee cannot establish that the reason was pretextual simply because it is 

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ultimately shown to be incorrect.”). As such, Plaintiff has failed to present 

evidence sufficient to establish that Defendant’s proffered reasons for his 

termination were mere pretext for discrimination. 

 c. Rebbeck Cannot be Held Personally Liable Under 

 Title VII 

 Finally, Plaintiff’s claims against Rebbeck cannot survive summary 

judgment. Plaintiff clarifies multiple times in his recounting of the August 13, 

2014 incident that Rebbeck is a fellow MOL and not a supervisor. (DE 37 at 6, DE 

29-2 at 132, ¶ 7.) “Title VII’s remedial provisions are incompatible with the 

imposition of liability on individual employees for violations of the Act.” Wathen 

v. Gen. Elec. Co., 115 F. 3d 400, 406 (6th Cir. 1997). Accordingly, Plaintiff 

cannot maintain an action under Title VII against Rebbeck, an individual 

employee. 

III. CONCLUSION 

Defendant’s motion for summary judgment should be granted because 

Plaintiff failed to file the instant action within 90 days of receiving his RTS letter. 

In the alternative, the motion should be granted because Plaintiff cannot establish 

his claim of race discrimination as a matter of law. 

IV. PROCEDURE ON OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

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as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

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21 

Dated: August 12, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on August 12, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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