RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0197p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEE BRIGGS,

Plaintiff-Appellant,

v.

UNIVERSITY OF CINCINNATI,

Defendant-Appellee.

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No. 20-4133

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:18-cv-00552—Matthew W. McFarland, District Judge.

Argued: June 10, 2021

Decided and Filed: August 26, 2021

Before: MOORE, CLAY, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Katherine Daughtrey Neff, FREKING MYERS & REUL LLC, Cincinnati, Ohio, 

for Appellant. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Columbus, Ohio, for Appellee. ON BRIEF: Katherine Daughtrey Neff, FREKING MYERS & 

REUL LLC, Cincinnati, Ohio, for Appellant. Michael J. Hendershot, Benjamin M. Flowers, 

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Lee Briggs, a Black man, worked as a 

compensation analyst for the University of Cincinnati (UC) Human Resources department. In 

>
No. 20-4133 Briggs v. Univ. of Cincinnati Page 2

July 2013, the HR department hired Cassandra Wittwer, a Caucasian woman, in the same 

position but at a much higher salary than Briggs. Over the next several years, Briggs’s pay 

stagnated while Wittwer’s rapidly increased. Briggs contends that after he submitted a claim of 

discrimination, UC retaliated by revising a job posting for which he had been encouraged to 

apply so that he was no longer eligible. Briggs sued UC, asserting claims of wage discrimination 

on the basis of race and sex, and retaliation for filing his complaint. The district court granted 

UC’s motion for summary judgment. Because there remain genuine disputes of material fact as 

to Briggs’s claims, we REVERSE.

I. BACKGROUND

A. Factual Background

The facts are presented in the light most favorable to Briggs. Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In November 2011, Briggs, having previously worked in two other benefits departments, 

began working as a Benefits Generalist in UC’s HR Department, with a starting salary of 

$39,000. In October 2013, he became a Compensation Analyst, reporting to Ken Stidham, 

Director of Compensation, and his salary increased to $43,000. Briggs received a two percent 

across the board annual raise in each of the two subsequent years, and by the summer of 2015 he 

was earning $44,737.20 per year. 

That July, Stidham and the interim chief HR officer, Peg Buttermore, hired Cassandra 

Wittwer, a Caucasian woman, as a Compensation Analyst. Wittwer had no prior compensation 

experience; she had been working at UC’s College-Conservatory of Music (CCM), earning a 

salary of $48,066.48 per year. According to Stidham, the Compensation Analyst position was a 

promotion from Wittwer’s previous position, and so university policy required HR to give her a 

minimum salary increase of 5 percent. Wittwer was ultimately hired at a salary of $53,000, a 

10.2 percent increase over her previous salary. Various explanations have been provided for that 

starting salary: in an affidavit submitted during this litigation, Stidham said it was because 

Wittwer “came with outstanding recommendations” from CCM and from others in Human 

Resources, and that after an interview, he was “very impressed by her.” At his deposition, 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 3

Stidham said he “believe[d]” Wittwer had said she would not leave her previous position unless 

HR offered her $53,000. Stidham testified that he knew there was a significant gap between 

Wittwer and Briggs’s salaries, but he could not close the gap because of the HR Department’s 

budget; instead, he planned to revisit Briggs’s salary later. 

In August 2015, Tamie Grunow joined the department as the Senior Associate Vice 

President & Chief Human Resources Officer. In September 2015, recognizing the gap between 

his and Wittwer’s salaries, Briggs submitted to Stidham a request for an “equity adjustment” to 

his pay pursuant to UC policy. The policy provides that the “Compensation Department has the 

responsibility to ensure the maintenance of internal pay equity within the internal (UC) and 

external (industry) market.” And an “employee’s overall performance rating and scope of 

responsibility in addition to budget, internal and external market and current placement in salary 

range may have a direct impact on his/her salary and the ability to receive a salary equity review 

and adjustment.” Under the policy, an employee has the right to seek a “pay equity study” by 

submitting a written request; the Compensation Department must then “conduct a review, 

consult with appropriate authority and issue a written determination.” 

Stidham took the request to Grunow, explaining that he believed Briggs’s salary was very 

low compared to internal and external equivalents. According to Stidham, Grunow did not 

initiate a review of Briggs’s pay, but simply responded “we’ll see.” Stidham raised Briggs’s 

request for pay equity again at a follow-up meeting; Grunow said she would think about it. Two 

years later, after Briggs brought his complaint of discrimination, Grunow stated in e-mails that 

the equity increase had not been supported based on performance concerns raised by Stidham. 

But at his deposition, Stidham denied having told Grunow he did not support the equity increase 

due to performance and denied Grunow ever told him that she did not support the equity 

increase. 

In June 2016, Briggs received an “Inconsistent” rating for the 2015–16 budget year. The 

review contained a mix of positive and constructive feedback. Wittwer received a rating of 

“Exceeds expectations” and positive feedback. In an e-mail in June 2016 to Grunow explaining 

Briggs’s rating, Stidham said that Briggs “wants to do well and has made strides within the last 

two (2) months,” but because the evaluation was for the entire year, Stidham felt he needed to 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 4

rate him as “inconsistent.” Still, he fully expected that Briggs would “continue to make strides 

and be meeting expectations by the time we meet for our mid-year reviews.” 

That fall, Grunow solicited bonus recommendations. Stidham requested a 2.5 percent 

bonus for Wittwer for exceptional performance, and a 2 percent bonus for Briggs for performing 

well for most of the year and being instrumental to a FLSA project. When Grunow responded 

that bonuses were available only to employees who achieved a “Meets expectations” rating, 

Stidham requested that Grunow consider awarding one to Briggs anyway, explaining that Briggs 

had received an “inconsistent” because he had been graded on the whole year. Stidham 

explained that if he looked at what Briggs “has done from January until now, he meets 

expectations . . . [he] has done tremendously better over the last 10 months . . . there is simply no 

way I could have finished the FLSA project in the fashion we did without his help.” Ultimately, 

Briggs received a $500 bonus, the lowest in the department; other HR employees received 

bonuses ranging from $800 to $4,000. Wittwer received a bonus of $1,200. Around the same 

time, Wittwer received a new job title, Compensation and HR Operations Analyst, although her 

base pay and responsibilities remained the same. 

In June 2017, Briggs received a rating of “Meets expectations,” with positive feedback, 

while Wittwer received a rating of “Meets+” expectations. That summer, the executive director 

of HR left the department, and Grunow decided to use the savings to reclassify several 

employees and increase their salaries. Wittwer was among those reclassified and was designated 

Compensation & HR Operations Lead in September 2017, with an associated 7 percent salary 

increase. According to Briggs, none of the individuals who were purportedly reclassified are 

male, and only one is Black. Briggs was not reclassified, but after he put in an equity request in 

August 2017, he received an adjustment of 3.3 percent, bringing his salary to $48,110.40. He 

contends, however, that he, along with two other employees, received the lowest raise among the 

HR employees who were subject to the reorganization. In October 2017, Briggs received a 

2 percent bonus of $962, while Wittwer received a 3 percent bonus of $1,700. 

In November, Wittwer was reclassified to HR Application Specialist, a 

non-compensation role, and her salary was increased to $62,055. After Wittwer’s departure from 

the compensation section, the HR Department decided to “backfill” her role with a senior 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 5

compensation analyst. Stidham discussed the proposed job posting with Briggs, encouraging 

him to apply and assuring him that he met the qualifications for the position. 

On November 6, Stidham e-mailed Grunow a proposed job description for the senior 

analyst position with the following minimum qualifications and a proposed pay grade of 

16: “Bachelor’s degree with three (3) years of experience; -OR- Associates’ degree with five (5) 

years of experience; -OR- seven (7) years of related experience. Experience should be in 

Compensation and current analytical technology.” The next day, November 7, Grunow 

responded that the description looked “good,” but asked for the phrase “should be” to be 

removed “as we want compensation experience required.” 

On November 8, 2017, Briggs e-mailed Grunow his complaint of discrimination. In the 

document, he pointed out several salary and bonus disparities between him and his colleagues 

and noted that other employees had been reclassified without having to apply, while he was 

being asked to apply formally to the senior compensation analyst position. The next day, 

Stidham testified, Grunow came to his office to ask “why [he] was not addressing [the] concerns 

that were included in the e-mail.” She also asked whether Stidham had told Briggs he would get 

the job; Stidham responded that he had encouraged Briggs to apply but had not promised him the 

job. According to Stidham, Grunow became angry, raised her voice, and walked out, slamming 

the door. 

The same day, Grunow e-mailed Stidham asking for the history of Briggs’s salary, 

including Briggs’s request for an equity increase, and the rationale for the disparity between his 

and Wittwer’s pay. Stidham provided a detailed response that evening. He recounted Briggs’s 

salary history and explained that Wittwer’s $53,000 starting salary was approved because 

Wittwer “came with outstanding recommendations and the planned compensation was $53K per 

year.” Stidham also explained that he and Grunow had communicated about an equity increase 

on Briggs’s behalf in fall 2015, not “due to performance,” but “to adjust the salary closer to the 

market.” Stidham noted that two prior female Compensation Analysts had earned $51,000 and 

$52,269.12, which he said were “close to market averages.” 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 6

About an hour later, Grunow responded that “[t]he 2015 equity increase was not 

supported by you or me due to performance, production and error concerns that were brought to 

my attention,” and that an insufficient rating was documented that year. She asked Stidham to 

provide her with a copy of Briggs’s 2015–16 review containing the “inconsistent” rating. 

Finally, she explained her view that the open senior compensation analyst position required 

technical expertise, critical thinking, a high level of compensation experience, and 

communication skills. 

On Monday, November 13, following a long weekend, Grunow told Stidham by e-mail to 

“hold on the posting for Sr. Comp. Analyst” so she could better “understand some of the 

differentials between the Comp positions” and ensure the new hire would fill the necessary 

“gaps.” Stidham responded that they could “backfill this as a Comp Analyst and . . . incorporate 

the reporting, Success Factors duties, etc. into the normal duties and responsibilities.” In reply, 

Grunow reiterated that she wanted an “experienced” senior compensation analyst and believed 

“at this level a Bachelor’s degree should be required” based on her review of “what the market 

would support.” She suggested they meet the next day before posting the position to sort out the 

disagreement. 

On November 14, Grunow, Stidham, and Briggs met to discuss Briggs’s complaint, with 

Stidham serving as Briggs’s third-party representative. According to Stidham, Grunow spent 

most of the meeting refuting Briggs’s allegations. Grunow asserted that Wittwer had come in 

with knowledge and experience that Briggs lacked, and questioned whether Briggs was doing the 

same types of higher-level tasks that Wittwer had been doing. Briggs said he had been doing the 

same tasks, which Stidham agreed were “typical comp analyst work.” After the meeting, 

Grunow sent Stidham an e-mail asserting that she had reviewed Briggs’s resume and concluded 

that he “was not qualified for the Comp position” when he was placed in that role four years 

earlier. 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 7

On November 15, Briggs notified UC’s Office of Equal Opportunity & Access (OEOA) 

of his concerns regarding discrimination and retaliation.1 A few days later, Grunow sent Briggs 

an e-mail further responding to his complaint, contending that he did not understand department 

policies and was behaving inappropriately. 

On November 21, Grunow told Stidham by e-mail that the senior compensation analyst 

position needed to be at the “manager level”; Stidham disagreed. The Department eventually 

posted the position with the job title “Senior Compensation & Performance Analyst,” at a pay 

grade of 19, and a bachelor’s degree required. Stidham believed this position’s compensation 

range was too high and “raise[d] internal and external equity concerns.” Grunow testified that 

she believed the senior compensation analyst role required technical knowledge and a high skill 

level. UC ultimately hired Rebecca Douglas, a Caucasian woman, for the job, at a salary of 

$76,000. Douglas left less than a year into her employment and was not replaced. 

Stidham contended that he suffered negative consequences as a result of his advocacy on 

Briggs’s behalf. On November 21, he had a one-on-one meeting with Grunow, who told him he 

was “not a good manager” and that he was “dishonest, and not trustworthy” and a poor 

communicator. Soon afterwards, Stidham learned that the open senior compensation analyst 

position would not report to him, the Director of Compensation, but to the “Central HR 

Administrator,” i.e., Grunow. Grunow also directed Stidham to attend a management 

communication course (which he had already taken the previous year), and in February 2018 

issued him a written warning—the first disciplinary action he had received during his tenure at 

UC. Stidham filed his own retaliation claim in February 2018. In June 2018, Stidham’s 

reporting structure was changed—he began reporting to Elizabeth Aumann, a subordinate of 

Grunow’s, rather than Grunow herself. 

B. Procedural History

Briggs filed his complaint on August 6, 2018. He filed an amended complaint on 

October 9, asserting claims of gender-based wage discrimination and retaliation under the Equal 

1OEOA conducted an investigation and eventually concluded that the HR department had not violated 

University policies. 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 8

Pay Act, and claims of race- and gender- based wage discrimination and retaliation under Title 

VII of the Civil Rights Act of 1964. UC answered and on November 27, 2019, moved for 

summary judgment. The district court granted the motion in full on September 28, 2020, and 

Briggs timely appealed. 

II. ANALYSIS

We review the district court’s grant of summary judgment de novo. See Kalich v. AT&T 

Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012). Summary judgment is appropriate when the 

record, viewed in the light most favorable to the nonmoving party, reveals that there is no 

genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of 

law. Fed. R. Civ. P. 56(c). A genuine dispute of fact exists where “there is sufficient evidence 

favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 249 (1986). In conducting this analysis, we do not judge credibility or 

weigh conflicting evidence; instead, we believe the evidence of the nonmoving party, and draw 

“all justifiable inferences” in his favor. Id. at 255; see also Rachells v. Cingular Wireless 

Employee Servs., LLC, 732 F.3d 652, 660 (6th Cir. 2013).

A. Wage Discrimination Claims

1. The Equal Pay Act and Title VII

Briggs brings wage discrimination claims under two distinct statutes, the Equal Pay Act 

and Title VII of the Civil Rights Act of 1964, contending that he was paid less than his 

coworkers and passed over for promotion because of his race and sex. 

The Equal Pay Act prohibits employers from discriminating against an employee on the 

basis of sex by paying lower wages than are paid to employees of the opposite sex for 

performing equal work, “except where such payment is made pursuant to: (i) a seniority system; 

(ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; 

or (iv) a differential based on any other factor other than sex.” 29 U.S.C § 206(d)(1). Courts 

apply a three-step analysis to EPA claims. First, “to establish a prima facie case of wage 

discrimination under the EPA, plaintiffs must show that an employer pays different wages to 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 9

employees of opposite sexes ‘for equal work on jobs the performance of which requires equal 

skill, effort, and responsibility, and which are performed under similar working 

conditions.’” Schleicher v. Preferred Sol’ns, Inc. 831 F.3d 746, 752 (6th Cir. 2016) (quoting 

Beck-Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006)). A showing of discriminatory intent 

is not required. Id. (citing Beck-Wilson, 441 F.3d at 460). Second, the defendant must prove by 

a preponderance of the evidence “that the wage differential is justified under one of the four 

affirmative defenses set forth under § 206(d)(1) of the Equal Pay Act.” Id. The fourth 

exception, the catch-all, relied upon by UC in this case, permits a “factor other than sex” to be an 

affirmative defense only if, “at a minimum, [it] was adopted for a legitimate business reason.” 

Beck-Wilson, 441 F.3d at 365 (quoting EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 

1988)). The defendant bears the ultimate “burden of persuasion and production on its 

affirmative defenses.” Id. at 364–65. So, on a motion for summary judgment, if the defendant 

carries its heavy burden of proving its affirmative defenses, the plaintiff must produce evidence 

creating a triable issue of fact as to whether the defendant’s proffered explanation was 

pretextual—the third step. Schleicher, 831 F.3d at 753. Thus, we may uphold the district court’s 

grant of summary judgment against Briggs “only if the record shows that [UC] established the 

[“factor other than sex”] defense so clearly that no rational jury could have found to the 

contrary.” Schleicher, 831 F.3d at 753 (quoting Beck-Wilson, 441 F.3d at 365).

Title VII prohibits “discriminat[ion] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such individual’s race, 

color, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII claims based on 

circumstantial evidence of discrimination are analyzed under the familiar three-step framework 

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “[O]n a motion 

for summary judgment, a district court considers whether there is sufficient evidence to create a 

genuine dispute at each stage of the McDonnell Douglas inquiry.” Risch v. Royal Oak Police 

Dep’t, 581 F.3d 383, 390–91 (6th Cir. 2009) (quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 

524 (6th Cir. 2007)). 

Under the McDonnell Douglas framework, the plaintiff has the initial burden of 

establishing his or her prima facie case by demonstrating that “(1) he or she was a member of a 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 10

protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified 

for the position; and (4) he or she was replaced by someone outside the protected class or was 

treated differently than similarly-situated, non-protected employees.” Wright v. Murray Guard,

Inc., 455 F.3d 702, 707 (6th Cir. 2006) (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 

2004)). The burden then shifts to the defendant to articulate a legitimate, 

non-discriminatory reason for its actions, supported by admissible evidence that “if believed by 

the trier of fact, would support a finding that unlawful discrimination was not the cause of the 

employment action.” Id. at 707 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 

(1993)). For claims of gender discrimination, a legitimate non-discriminatory reason may 

include one of the affirmative defenses set forth in the EPA. Beck-Wilson, 441 F.3d at 369

(citing Washington Cnty. v. Gunther, 452 U.S. 161, 167–71 (1981)). Finally, the employee has 

the burden of proving by a preponderance of the evidence that the employer’s proffered reasons 

were a mere pretext for discrimination. Wright, 455 F.3d at 707–08. When the burden shifts 

back to the plaintiff, “he must come forward with evidence that the defendant’s reason for the 

employment action is false,” but he “need not present independent evidence that the proffered 

reason is pretext for [] discrimination.” Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 

615 (6th Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) 

(“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s 

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

unlawfully discriminated.”)). The employer bears the burden of production at the second step, 

but the employee bears the ultimate burden of production and persuasion. Hicks, 509 U.S. at 

507–08.

UC does not dispute the wage differential between Briggs and Wittwer, assuming on

appeal that Briggs has made out a prima facie case under both Title VII and the EPA. UC argues

that the wage differential was the result of several factors unrelated to race or sex, including

Wittwer’s experience and qualifications. So, with respect to the EPA, we ask whether UC has

proven that the wage differential was based on a factor other than sex that was applied for a

legitimate business reason; with respect to Title VII, we ask only whether UC has produced
No. 20-4133 Briggs v. Univ. of Cincinnati Page 11

evidence from which a reasonable jury could infer it had a legitimate, non-discriminatory reason 

for its actions.2 We address each claim in turn.

a. Briggs’s EPA Claim

UC points this court to five factors that it contends justify the pay

differential: (1) Wittwer started her employment at a higher salary than Briggs because she had

demanded that salary as a condition of her employment; (2) Briggs consistently scored below

Wittwer on performance reviews; (3) Wittwer and Briggs had different skills and

responsibilities; (4) Briggs and Wittwer had different attitudes about self-improvement; and (5)

Wittwer had a bachelor’s degree and Briggs did not. 

Stidham testified that the Compensation Analyst position was a promotion from 

Wittwer’s previous role, and so university policy required HR to give her a minimum salary 

increase of 5 percent. But her eventual starting salary of $53,000 was 10.2 percent higher than 

her previous salary of $48,066.48. Stidham also testified that he “believe[d]” Wittwer had said 

she would not leave her previous position unless HR offered her $53,000. This testimony—

uncertain even on its own terms—is not conclusive of UC’s argument that Wittwer conditioned 

her acceptance of the offer on the higher salary. Moreover, Stidham’s other statements reflected 

different reasons for Wittwer’s higher salary. In his affidavit of August 2019, Stidham stated 

only that Wittwer “came with outstanding recommendations” from CCM and from others in 

Human Resources, and that after interviewing her he was “very impressed by her.” Similarly, 

when Grunow requested an explanation and history of the salary differential between Briggs and 

Grunow, Stidham responded by e-mail dated November 9 explaining that a salary of $53,000 for 

Wittwer was approved because she “came with outstanding recommendations.” In neither 

document did he claim Wittwer had demanded the higher salary. The inconsistencies between 

Stidham’s deposition testimony and his other statements create issues of fact as to whether 

Wittwer’s starting salary was the result of her prior salary, her demand for a higher salary, or 

2As caselaw makes clear, the Title VII and EPA analyses may overlap for wage discrimination claims, but 

they are not, as the district court believed, coterminous. Because the burdens of production and persuasion are 

allocated differently in the two types of claims, a defendant’s evidentiary showing that falls short of proof at the 

second step has a different impact for each claim: in an EPA claim, summary judgment will be denied, whereas in a 

Title VII claim, the burden then shifts to the plaintiff to produce evidence supporting pretext.
No. 20-4133 Briggs v. Univ. of Cincinnati Page 12

other factors. And although Grunow stated in her response to the OEOA that Wittwer was hired 

into her starting salary “to attract her to accept the position,” Grunow was not involved in hiring 

Wittwer. 

In any event, no authority supports the concept that an employee’s prior salary or demand 

for a specific salary is sufficient in isolation to justify a wage differential. Such a rule would 

simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to 

require that those doing the same work receive the same pay. In the cases cited by Defendant, 

moreover, multiple other factors supported the new employee’s higher pay as compared with the 

plaintiff’s pay. See, e.g., Balmer v. HCA, Inc., 423 F.3d 606, 613 (6th Cir. 2005) (disparity 

justified where comparator “asked for a higher salary than Plaintiff, had a higher salary history 

than Plaintiff, and most importantly, the ultimate decision maker . . . determined that [the 

comparator] had greater relevant industry history than Plaintiff”); Foco v. Freudenberg-NOK 

Gen. P’ship, 549 F. App’x 340, 345–46 (6th Cir. 2013) (wage differential was based on 

comparator’s prior salary, negotiations, market value, skill, experience, qualifications, and job 

responsibilities); Ambrose v. Summit Polymers, Inc., 172 F. App’x 103, 107–08 (6th Cir. 2006) 

(employer’s “evidence show[ed] that it considered not only prior salaries but also skills and 

experience that were of value to the company” and that it “paid what was required to recruit” the 

higher paid employees).

Next, UC contends it has proven that Wittwer had better performance reviews, more 

skills, greater responsibilities, and a better attitude towards self-improvement than Briggs, as 

well as a bachelor’s degree, which Briggs did not have. UC claims, for example, that Stidham 

gave Briggs the lowest performance rating of any employee in the HR department during 

Grunow’s tenure. UC points also to statements in Stidham’s affidavit that he assigned Wittwer 

more complex and difficult compensation issues that he did not think Briggs could handle, and 

that Wittwer was “constantly striving to be better” whereas Briggs “balked” at doing anything 

outside his job description. In particular, Stidham pointed to Briggs’s “inconsistent” Excel skills, 

issues with Briggs leaving early, and his “problems timely and accurately completing PCRs.” 

The record tells a more complex story. Briggs was hired in 2013, Wittwer was hired in 

July 2015, and Briggs put in his first equity request in September 2015. It was denied, even 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 13

though at a salary of $44,737.20, he was earning substantially less than Wittwer, who was being 

paid $53,000, and less than two prior female compensation analysts, who had earned $51,000 

and $52,269.12, respectively. Yet the record contains no evidence of his performance from that 

period, aside from Grunow’s post-complaint statements that the equity request was denied due to 

performance concerns, which directly conflicts with Stidham’s statements. In June 2016, Briggs 

did receive an “Inconsistent” for the 2015–16 budget year, and Wittwer received an “Exceeds 

Expectations,” but UC offers no objective metrics for Briggs’s performance to support these 

subjective ratings. And the review contains positive feedback for Briggs from Stidham that 

contradicts Stidham’s post-deposition affidavit, such as that Briggs had “the right attitude and is 

more than willing to learn to better himself,” was “more than willing to work with data 

operations and the front desk on providing good customer support to students and employees,” 

and was regularly given the department’s salary requests because Stidham “kn[e]w he will 

complete the[m] both accurately and on time.” Stidham also observed that the fact that Briggs 

was “slightly behind from a technical skillset” was not “necessarily [his] doing, as he was asked 

to be at the forefront of PCR restructuring/testing and Non-Recruitment event submittals.” 

In a June 2016 e-mail to Grunow explaining the rating, Stidham stated that Briggs “wants 

to do well and has made strides within the last two (2) months,” but because the evaluation was 

for the entire year, Stidham felt the “need” to rate him as “inconsistent.” Still, he fully expected 

that Briggs would “continue to make strides and be meeting expectations by the time we meet for 

our mid-year reviews.” Similarly, in advocating for Briggs to receive a bonus that year, Stidham 

explained to Grunow that Briggs had received an inconsistent because he had been graded on the 

entire year. But had he looked at what Briggs “has done from January until now, he meets 

expectations . . . [he] has done tremendously better over the last 10 months . . . there is simply no 

way I could have finished the FLSA project in the fashion we did without his help.” 

In June 2017, Stidham awarded Briggs a rating of “Meets expectations,” and awarded 

Wittwer a “Meets+” rating. In the 2017 review, Stidham stated that Briggs had improved his 

organizational skills, was increasing his “job knowledge,” was good at problem-solving, had an 

“outstanding” demeanor, and had “the right attitude AND drive to be able to continue to learn 

and advance in compensation.” Stidham reported that Briggs completed all salary surveys and 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 14

deliverables on time, effectively performed his job duties, and was “willing to collaborate and 

perform in other areas of central HR.” In November 2017, Stidham told Grunow that he had to 

“applaud [Briggs’s] willingness to continually learn and improve in Compensation 

Administration.” And although UC claims in a conclusory fashion that Wittwer had greater 

responsibilities than Briggs, the record shows that both Briggs and Stidham agreed that the two 

compensation analysts were doing the same tasks. 

Taken together, all these inconsistencies create issues of fact as to UC’s claim that 

Wittwer was more qualified, more skilled, and had more advanced responsibilities than Briggs. 

But perhaps more importantly, UC has offered no evidence that the purported differences

between Wittwer and Briggs actually motivated the disparity in their wages. 

The text of the EPA provides that “a factor other than sex” is a legitimate justification for

a wage differential where the “payment is made pursuant to” that factor. 29 U.S.C. § 206(d)(1)

(emphasis added). As our sister Circuits have explained, this language requires an employer to

submit evidence from which a factfinder could conclude that the proffered reasons “in fact”

explain the wage disparity—not just that the reasons could explain it. Stanziale v. Jargowsky, 

200 F.3d 101, 107–08 (3d Cir. 2000); see also United States EEOC v. Md. Ins. Admin., 879 F.3d 

114, 123 (4th Cir. 2018) (“[T]he EPA requires that a factor other than sex in fact explains the 

salary disparity”); Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (denying 

summary judgment because “[a]lthough [defendant’s stated] reason could explain the wage 

disparity, we cannot conclude, as a matter of law, that it in fact explained the wage disparity”). 

We have also held that to justify a wage differential, an employer must demonstrate that the

factor other than sex “was adopted for a legitimate business reason and used reasonably in light

of the employer’s stated purpose.” J.C. Penney, 843 F.2d at 253 (citing Kouba v. Allstate Ins.

Co., 691 F.2d 873, 876 (9th Cir. 1982)). “‘Illusory,’ ‘post-event justification[s]’ for unequal pay

for equal work” are not valid factors on which a wage differential may be based. Odomes v.

Nucare, Inc., 653 F.2d 246, 252 (6th Cir. 1981) (quoting Hodgson v. Behrens Drug Co.,

475 F.2d 1041, 1047 (5th Cir. 1973)). 

Though a defendant need not offer contemporaneously produced evidence of its 

rationale, there must be evidence in the record proving that the employer’s proffered justification 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 15

was the reason for the wage differential’s existence. UC’s pay equity policy provides that 

performance ratings and responsibilities “may” impact an employee’s salary and pay equity 

requests, but Defendant offers no evidence to prove they actually did in Briggs’s case. 

Stidham’s affidavit contains no statement that the purported deficiencies in Briggs’s 

performance, or Wittwer’s purported excellence, were the basis for the persistent and significant 

difference in their salaries, the denial of Briggs’s equity request, Wittwer’s repeated 

reclassification, and Briggs’s stagnation in the HR department. Neither Stidham nor Grunow 

made such statements at their depositions, nor did they provide testimony or documents setting 

forth the processes and metrics used by the department to set salaries and reclassify employees.

Other evidence in the record, viewed in the light most favorable to Briggs, undermines 

Defendant’s proposed connection between Briggs’s alleged performance and his pay. At his 

deposition, Stidham stated that when he hired Wittwer, he knew there was a gap between her and 

Briggs’s salaries and that he hoped to close it when the budget permitted. According to Stidham, 

in practice equity adjustments are made based on external and internal market rates, not 

performance. So, when he brought Briggs’s equity request to Grunow’s attention in 2015, he 

explained that he believed Briggs’s pay was very low compared to both internal and external 

equivalents. According to Stidham, Grunow failed to initiate a pay equity review, instead 

responding “we’ll see,” and tabled the request at that time and at a follow-up meeting. Then, in 

2017, after Briggs e-mailed his complaint, Grunow asked Stidham for the rationale for Briggs’s 

starting salary, Wittwer’s higher starting salary, and Briggs’s 2015 equity request. Stidham did 

not mention the performance of either employee. Instead, he recounted Briggs’s and Wittwer’s 

starting salary and yearly across-the-board increases. He also recalled communicating with 

Grunow about a possible equity increase for Briggs, not “due to performance,” but “to adjust the 

salary closer to the market,” noting that previous female compensation analysts had also had 

higher salaries than Briggs, at $51,000 and $52,269. Grunow disagreed with Stidham’s 

explanation: “[T]he 2015 equity increase was not supported by you or me due to performance, 

production and error concerns that were brought to my attention.” Similarly, in her statement to 

OEOA, Grunow claimed that Briggs’s equity request was denied because Stidham told her 

Briggs “was not meeting job responsibilities entirely.” 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 16

The record does not show beyond dispute that Wittwer’s bachelor’s degree and higher

performance ratings than Briggs, or any other specified factors, were the reason for the salary

disparity between her and Briggs. UC has therefore failed to meet its burden of proving that

these distinctions were “the reason for the pay disparity.” Vehar v. Cole Nat’l Grp., Inc., 251 F. 

App’x 993, 1001 (6th Cir. 2007); see also 29 U.S.C. § 206(d)(1). And because UC did not 

establish its “factor other than sex” defense “so clearly that no rational jury could have found to 

the contrary,” the grant of summary judgment was inappropriate. Schleicher, 831 F.3d at 753 

(quoting Beck-Wilson, 441 F.3d at 365).

2. Title VII Wage Discrimination

Although UC has not met its burden under the EPA of proving that the wage disparity 

was based on a factor other than sex, it has satisfied its lower Title VII burden of articulating a 

legitimate business explanation for the disparity, supported by some evidence. The burden 

accordingly shifts to Briggs to demonstrate that the reason is pretextual. One way a plaintiff can 

establish pretext is by “an indirect evidentiary showing that the employer’s explanation is not 

credible.” Peters v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002). The record contains 

no contemporaneous evidence that the cited distinctions between Wittwer and Briggs actually 

motivated their salary disparity, and it contains disputes of fact among UC’s own witnesses as to 

whether performance is, in practice, a consideration for employees’ base pay. The post-hoc 

nature of the justifications contained in Stidham’s affidavit further support an inference of 

pretext, particularly given that several of the statements contradict statements made by Stidham 

in Briggs’s performance reviews and cannot be squared with the undisputed fact that Stidham 

recognized Briggs’s pay was below market and requested an equity adjustment for him. 

“An employer’s changing rationale for making an adverse employment decision can 

be evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.

1996); see also Gaglioti v. Levin Grp., Inc., 508 F. App’x 476, 482 (6th Cir. 2012) 

(“Although . . . there is evidence in the record of dissatisfaction with Gaglioti’s work . . . this 

justification was never raised by Levin Group until well into the litigation . . . the jury [could] 

view the performance argument as a litigation strategy, as opposed to the real reason for the 

action”).
No. 20-4133 Briggs v. Univ. of Cincinnati Page 17

A plaintiff’s discrimination claim survives summary judgment when the record contains 

“enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant’s 

proffered rationale.” Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012) (quoting Blair v. 

Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007)). The record here contains evidence that 

defeats UC’s motion on the Title VII claim; the grant of summary judgment must be reversed.

B. Retaliation Claims

According to Briggs, the “gravamen” of his retaliation claims is that after he complained 

to Grunow about discrimination, Grunow retaliated against him by pulling and altering the job 

description and requirements for the senior compensation analyst position. Before the district 

court, UC argued that it was entitled to summary judgment because Grunow “honestly 

believed” that Briggs was not qualified for the pulled posting, and “there [was] no evidence of 

pretext”—an argument addressing the final stages of the burden shifting analysis. UC’s reliance 

on this argument presumes that Briggs made out a prima facie case of retaliation. 

The district court granted summary judgment for two reasons. First, it found that Briggs 

could not show a causal connection between his complaints of discrimination and Grunow’s 

decision not to hire him because the day before Briggs made his complaint of discrimination 

Grunow had approved a job posting requiring seven years of compensation experience for those 

without a degree, which the court found excluded Briggs. Second, the court found UC had 

established that it “believed in good faith [Briggs] was not qualified for” the position, and so 

could not be liable for retaliation. On appeal, Briggs contends that the district court erred in 

granting summary judgment based on grounds not raised by the moving party—the causation 

element of Briggs’s prima facie case—and in concluding that UC had established as a matter of 

law that it could not be liable under the honest belief rule. 

Federal law prohibits employers from retaliating against employees for filing complaints 

of discrimination under Title VII, 42 U.S.C. § 2000e-2(a), or of unequal pay for equal work 

under the EPA, 29 U.S.C. § 215(a)(3). Claims asserting retaliation based on circumstantial 

evidence are analyzed under the McDonnell Douglas burden-shifting framework. See Imwalle v. 

Reliance Med. Prods., Inc., 515 F.3d 531, 543–44 (6th Cir. 2008); Adair v. Charter Cnty. of
No. 20-4133 Briggs v. Univ. of Cincinnati Page 18

Wayne, 452 F.3d 482, 489 (6th Cir. 2006). To establish a prima facie case of retaliation, a 

plaintiff must establish that he (1) “engaged in a protected activity”; (2) his “exercise of such 

protected activity was known by the defendant”; (3) the defendant subsequently “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.” Rogers v. Henry Ford Health Sys., 897 

F.3d 763, 775 (6th Cir. 2018) (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 

2014)). 

The district court first concluded that Briggs could not make out a prima facie case 

because there was no causal connection between his complaint and Grunow’s decision to change 

the job description. But UC never challenged Briggs’s prima facie case. And it is wellestablished that before granting summary judgment “on grounds not raised by a party,” that party 

must be provided “notice and a reasonable time to respond.” George v. Youngstown State Univ., 

966 F.3d 446, 467 (6th Cir. 2020) (quoting Fed. R. Civ. P. 56(f)(2). This is because “a district 

court does not have before it the full factual record developed by the parties in discovery. Rather, 

a party opposing summary judgment will supply only the evidence needed to demonstrate a 

genuine dispute as to the issues raised in the motion.” Id. Because UC had not disputed Briggs’s 

prima facie case, including its causation element, the district court should not have granted 

summary judgment on that ground.

UC argues that it did place causation in issue because it raised the “honest-belief defense” 

which “is inextricably related to causation,” (citing Banks v. Bosch Rexroth Corp., 610 Fed. 

App’x 519, 533 (6th Cir. 2015); Tillman v. Ohio Bell Tel. Co., 545 F. App’x 340, 351 (6th Cir. 

2013)). But as explained below, in the context of the evidentiary burdens borne by the parties 

under the McDonnell Douglas framework, the honest belief rule serves to “rebut the plaintiff’s 

evidence of pretext” at the third step of the analysis. Clay v. United Parcel Serv., Inc., 501 F.3d 

695, 714 (6th Cir. 2007); see also Tillman, 545 F. App’x at 351. Tellingly, UC discussed the 

honest belief rule as part of its argument that Briggs had failed to show pretext, and the cases it 

cited in support were decided at the pretext step of the McDonnell Douglas framework. It was 

improper for the district court to sua sponte resolve this case on an element of the prima facie 

case that Briggs had not had the opportunity to litigate. 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 19

As to the merits, the record contains e-mail evidence indicating that Grunow did not 

know how much work experience Briggs had at the time she pulled the posting, as well as 

circumstantial evidence that makes a retaliatory motive plausible, such as Grunow’s anger that 

Briggs had filed a complaint, and the fact that she pulled the job posting almost immediately 

afterwards. That is enough to meet Briggs’s “minimal” burden at the prima facie stage of 

providing evidence “to deduce a causal connection between the retaliatory action and the 

protected activity.” Imwalle, 515 F.3d at 550–51 (quoting EEOC v. Avery Dennison, 104 F.3d 

858, 861 (6th Cir. 1997)). 

Once a plaintiff makes out a prima facie case, the defendant bears the burden of 

articulating a legitimate, non-retaliatory reason for its action, supported by admissible evidence. 

Rogers, 897 F.3d at 777. If the defendant does so, the burden shifts to the plaintiff to 

demonstrate that the proffered reason is “actually a pretext to hide unlawful retaliation.” Id.

(quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 597 (6th Cir. 2007)). At the 

summary judgment stage, a plaintiff meets this burden when he “produce[s] evidence sufficient 

that a reasonable finder of fact could reject the employer’s proffered reason.” Id. (quoting 

Michael, 496 F.3d at 597).

Plaintiffs ordinarily show pretext “by showing that the proffered reason[] (1) had no basis 

in fact; (2) was insufficient motivation for the employment action; or (3) did not actually 

motivate the adverse employment action.” Joostberns v. United Parcel Servs., Inc., 166 F. 

App’x 783, 790–91 (6th Cir. 2006); see also Smith v. Chrysler Corp., 155 F.3d 799, 805–06 (6th 

Cir. 1998); Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1082 (6th Cir. 1994). 

Under the honest belief rule, a pretext argument falling into the first category—asserting that the 

reason given by the employer has no basis in fact—may be defeated by conclusive evidence that 

the defendant “honestly believed” its proffered reason, and that the belief was reasonably based 

“on particularized facts that were before it at the time the decision was made.” Clay, 501 F.3d at 

714 (Wright, 455 F.3d at 708). If there is sufficient evidence for a reasonable jury to find the 

employer did not have an honest belief in its proffered reason that was based on a proper 

investigation, summary judgment must be denied.
No. 20-4133 Briggs v. Univ. of Cincinnati Page 20

So, the honest-belief rule gives a defendant the opportunity to rebut a plaintiff’s third-step 

argument that the defendant’s proffered reason for the adverse action lacks a basis in fact and is 

therefore pretextual. But UC has not articulated a legitimate, non-retaliatory reason for altering 

the job posting that Briggs could then argue is true or false. Instead, it improperly skips to the 

third step of the McDonnell Douglas analysis, disputing Briggs’s evidence of retaliation under 

the guise of the honest-belief defense without having satisfied its own second-step burden.

Briggs is entitled to demonstrate pretext in multiple ways beyond showing that UC’s 

proffered reason is “mistaken,” including, for example, by showing that the reason “did not 

actually motivate the adverse employment action.” Joostberns, 166 F. App’x at 791. This 

record contains evidence from which a reasonable jury could conclude that Grunow’s alteration 

of the posting was retaliatory rather than innocent. Contemporaneous e-mails and other evidence 

suggest that Grunow’s decision-making about Briggs’s complaint and the job posting were 

linked. Briggs made his complaint on November 8. That evening, at 8:31 p.m., Grunow sent an 

e-mail to herself with the subject line “Ken” containing numbered notes about Stidham and 

Briggs, including that Stidham “[t]old Lee he is more than qualified for a Sr analyst in Comp 

vacancy.” The next day, according to Stidham, when Grunow came to Stidham’s office the first 

thing she did was ask why he had not already addressed Briggs’s complaints. She then 

asked: “Did you tell Lee that if there was a Sr. Compensation Analyst position that he would get 

the job?” Stidham responded, “No, I didn’t tell Lee that he would get the job, but I did 

encourage him to apply for it, and why would I not?” According to Stidham, “Grunow was 

visibly angry and walked out of my office,” slamming the door behind her. One of the OEOA 

investigators also testified that Stidham said Grunow had asked whether he told Briggs he was 

getting the senior compensation analyst position. Later on November 9, Grunow e-mailed 

Stidham again pointing out Briggs’s purported performance issues, and explaining that the open 

senior compensation analyst position required technical expertise, critical thinking, a high level 

of compensation experience, and communication skills. 

Then, on November 13, Grunow e-mailed Stidham directing him to pull the senior 

compensation analyst job posting. Although in retaliation cases “temporal proximity cannot be 

the sole basis for finding pretext,” it can be “a strong indicator of pretext when accompanied by 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 21

some other, independent evidence.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 

(6th Cir. 2012) (quoting Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) and Bell v. 

Prefix, Inc., 321 F. App’x 423, 431 (6th Cir. 2009)). Grunow’s comment to Stidham and her 

notes to herself provide such evidence, as do Stidham and Briggs’s testimony that she was upset 

about Briggs’s complaint. In addition to the anger she displayed during her conversation with 

Stidham on November 9, when she met with Stidham and Briggs on November 14, Briggs 

described her as “defensive and accusatory,” and said Grunow accused him of throwing his 

discrimination claim around lightly. Stidham also testified that Grunow was “defensive” at the 

meeting. On November 18, Grunow sent Briggs a follow-up e-mail contending that he 

misunderstood department policies, and stating that:

When you communicated your opinions due to what you see in the systems and 

your comment that others agree with your opinions or perceptions as well as share 

their own with you this is inappropriate and concerning.

When gossip and opinions of co-horts, especially in HR occur, in relation to other 

staff roles involving pay and responsibilities this is a very serious risk to liability

and the credibility of Central HR.

Grunow’s e-mail also contained language indirectly suggesting that Briggs lacked the skills 

necessary to advance in the department or to qualify for currently posted or soon to be posted 

positions.3 A reasonable jury might read these comments as evidence that Grunow was 

displeased that Briggs had made a claim of discrimination and was attempting to obstruct his 

application to the newly posted position. This inference would be legitimate even if Grunow 

3Specifically, she stated:

The HR Office has current vacancies posted or soon to be posted to meet critical areas of 

responsibilities. As you know, several HR staff accepted external opportunities that require 

reassessment as these changes occur. Sr. Leadership supported a transfer from BCS to HR for 

three training staff and recently supported one staff moving from HR to BCS to further create 

greater collaborative alignments. Our office is experiencing not only many large initiatives but 

also staffing simultaneously and this can be very challenging. IT will also lead to future growth 

opportunities that we look forward to for Central HR.

As we discussed at our meeting together with your Director, there are many factors that impact 

pay and advancement for career options some of these include: current knowledge, skills, 

abilities, accuracy, proficiency, education internal and external market drivers. Also, important 

factors: initiating action steps for problem solving, seeking certifications, new skill development, 

performance, professionalism all examples that contribute to individual success and goal 

achievement. 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 22

honestly believed Briggs lacked seven years of compensation experience; a reasonable jury 

might conclude she wanted to make clear that Briggs should not apply to the new position.

Even if the honest belief defense had been properly invoked here, the record contains 

evidence that at the time she pulled the posting, Grunow did not have an honest belief that Briggs 

lacked the requisite experience that was based on particularized facts that were before her. See 

Smith, 155 F.3d at 807. In her affidavit, Grunow states that “[W]hen I authorized the posting of 

the senior compensation analyst on November 7, I did not believe that Briggs was qualified for 

the senior compensation analyst job because he did not have the required 7 years of experience.” 

But on November 9, the day after Briggs e-mailed his complaint to Grunow, Grunow sent 

Stidham an e-mail that read, in part:

Please provide me records of rationale that existed before I began here in 2011 for 

Lee Briggs starting salary at UC and whether he was moved, applied for or 

reorganized to the position in Compensation and his salary starting in Comp 2013.

I will need to understand the rationale for the difference in salary for a hire that 

started at $53,000 in 2013 (I believe that was Cassandra but not sure) and if this 

was the same position that Lee was in at that time. 

A reasonable jury could infer from that message that as of November 9, Grunow lacked 

knowledge of particularized facts about the nature or extent of Briggs’s work experience in 

compensation from which she could have formed an honest belief. Further supporting that 

conclusion is Grunow’s e-mail to Stidham on November 15, stating that she had now “reviewed 

Lees resume and experience. It appears that Lee was hired in benefits due to his experience in 

Benefits and was not qualified for the Comp position without a degree or required Comp years of 

experience in lieu of degree.” But the record indicates Grunow did know that Briggs lacked a 

bachelor’s degree: Briggs had openly been working toward that degree while he was employed 

in HR. In an e-mail to Briggs on November 18 addressing his complaint, Grunow wrote that she 

had been “supportive by approving the class load over the threshold upon your request” and had 

provided him with “schedule flexibility.” 

A jury might conclude, therefore, that in pulling the posting on November 8, Grunow 

intended to add a qualification that she knew for certain Briggs did not possess. Grunow’s 

comment on November 15 that Briggs was unqualified for the position he had already occupied 
No. 20-4133 Briggs v. Univ. of Cincinnati Page 23

for several years might further support that inference by suggesting she was looking for 

additional reasons to exclude him from the new position. Indeed, this Court has held repeatedly 

that the post-hoc nature of a justification “can create a genuine dispute of material fact on the 

issue of pretext.” Amos v. McNairy Cnty., 622 F. App’x 529, 540 (6th Cir. 2015) (collecting 

cases); see also Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir. 2009) (“We have held 

that when an employer . . . waits for a legal, legitimate reason to fortuitously materialize, and 

then uses it to cover up his true, longstanding motivations for firing the employee, the 

employer’s actions constitute the very definition of pretext.”).

UC has not articulated a legitimate, non-retaliatory reason for its adverse employment 

action. Even if it had, the record contains ample evidence from which a reasonable jury could 

find it pretextual. UC’s attempt to invoke the honest-belief rule does not defeat that conclusion. 

Summary judgment on this ground was inappropriate.

III. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the district court and 

REMAND for further proceedings in accordance with this opinion.