NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0306n.06

Case No. 24-3032

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KENNETH CARTWRIGHT,

Plaintiff - Appellant,

v.

D.E. FOXX & ASSOCIATES, INC.,

Defendant - Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO

OPINION

Before: GIBBONS, KETHLEDGE, and DAVIS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Before us is Kenneth Cartwright’s appeal of 

the district court’s order granting summary judgment to his former employer, d.e. Foxx & 

Associates (“Foxx” or the “Company”), in Cartwright’s suit against the Company for age 

discrimination. For the reasons that follow, we affirm.

I.

Foxx, through one of its subsidiaries, employed Cartwright in a sales position. In over a 

year on the job, Cartwright failed to make a single sale. The Company put Cartwright on a 

performance improvement plan, but nothing changed, and roughly seventeen months after placing 

Cartwright in his role, Foxx fired him. At the same time, Foxx fired two of Cartwright’s 

colleagues, both of whom similarly failed to generate sales activity. One of those colleagues was 

ten years Cartwright’s junior. Neither Cartwright nor his colleagues were replaced, and their 

collective responsibilities fell to their supervisor, the sole remaining employee in their department.
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Cartwright sued Foxx under the Age Discrimination Employment Act (“ADEA”) and Ohio 

state law, alleging that Foxx fired him because of his age.1 During discovery, Cartwright testified 

that, although no one at the Company ever “directly” told him that his termination stemmed from 

his age, Foxx’s HR representative, Chavon Phillips, told him “[d]uring a conversation when all of 

this transpired” that the Company was trying to hire younger employees. DE 18, Cartwright Dep., 

Page ID 117–18, 159:24–161:4, 122, 180:12–16. Cartwright further testified that Phillips had 

broached the topic of younger employees “[e]ven before that, [in] normal conversation.” Id. at 

122, 180:15–16.

After the close of discovery, Foxx moved for summary judgment, arguing that Cartwright 

failed to make out a prima facie case of discrimination. In response, Cartwright changed his story. 

In a declaration attached to his brief in opposition to summary judgment, Cartwright claimed that

Phillips explicitly told him “at or near the time of [his] termination” that he was fired “because of 

[his] age of being over 40 . . . so that the company could hire younger employees as part of the 

organization.” DE 23-2, Decl. of Kenneth Cartwright, Page ID 402. Cartwright further stated that 

Phillips discussed the Company’s intent to hire younger employees with Cartwright on “4-6 

occasions” leading up to his termination, each time during conversations in which Cartwright “was 

asking [Phillips] for her advice as a HR representative.”

2

Id.

The district court granted Foxx’s motion for summary judgment, finding that Cartwright’s 

evidence failed to establish a prima facie case. The court declined to consider the statements in 

1 Cartwright was born in 1964.

2 The record contains no evidence about Phillips’s precise job, so we cannot conclude 

whether statements attributed to her are admissible under Federal Rule of Evidence 801(d)(2)(C) 

or (D). Because Foxx does not challenge the statements on admissibility grounds, we need not 

address this evidentiary point. 
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Cartwright’s declaration because they contradicted (or at a minimum, impermissibly expanded 

upon) his deposition testimony, and it found that Cartwright’s remaining evidence, which 

consisted of one conversation between him and Phillips indicating that Foxx wanted to hire 

younger employees, proved insufficient to support an inference of age discrimination. Cartwright 

v. d.e. Foxx & Assocs., Inc., No. 1:22-CV-00038, 2023 WL 8623589, at *5 (S.D. Ohio Dec. 13, 

2023) (citing Geiger v. Tower Auto., 579 F.3d 614, 622–23 (6th Cir. 2009) and Snyder v. Pierre’s 

French Ice Cream Co., 589 F. App’x 767, 772 (6th Cir. 2014)) (“No one younger, in fact no one 

at all, replaced Cartwright. And (alternatively), [Foxx] also terminated (similarly situated) 

[employee] Dave Kopecky, who is 10 years younger than Cartwright.”). Cartwright timely 

appealed.

II.

Cartwright’s appeal presents two questions: first, whether the district court abused its 

discretion by not considering the statements in Cartwright’s declaration, and second, whether 

Cartwright, with or without the aid of those statements, identified sufficient record evidence for a 

reasonable juror to find that Foxx terminated him because of his age. We answer the first question 

with a partial “yes” and the second question with an unambiguous “no.”

A.

We begin with the district court’s refusal to consider the statements in Cartwright’s 

declaration, which we review for abuse of discretion. Griffin v. Finkbeiner, 689 F.3d 584, 592

(6th Cir. 2012). We have many times declined to consider affidavit testimony filed in opposition 

to summary judgment when it directly contradicts earlier deposition testimony. See, e.g., Reich v. 

City of Elizabethtown, 945 F.3d 968, 977 (6th Cir. 2019). This practice “is grounded on the sound 

proposition that a party should not be able to create a disputed issue of material fact where earlier 
No. 24-3032, Cartwright v. d.e. Foxx & Associates, Inc.

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testimony on that issue by the same party indicates that no such dispute exists.” Aerel, S.R.L. v. 

PCC Airfoils, LLC, 448 F.3d 899, 907 (6th Cir. 2006). Were we to permit otherwise, we “would 

greatly diminish the utility of summary judgment as a procedure for screening out sham issues of 

fact.” Reich, 945 F.3d at 976 (quoting Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir. 

1984)). 

Yet recognizing that “the deponent is under no obligation to volunteer information not 

fairly sought by the questioner,” Aerel, 448 F.3d at 907, we apply “a relatively narrow definition 

of contradiction,” Reich, 945 F.3d at 976 (quoting Briggs v. Potter, 463 F.3d 507, 513 (6th Cir. 

2006). That is, where a declaration merely “fills a gap left open by the moving party and thus 

provides the district court with more information, rather than less,” we will allow its consideration 

at the summary judgment stage. Aerel, 448 F.3d at 907.

This distinction arises in considering the two statements offered in Cartwright’s 

declaration. On the one hand, Cartwright’s assertion that Phillips explicitly told him he was fired 

because he was over forty years old directly contradicts Cartwright’s deposition testimony. Twice 

during his deposition, Cartwright was asked whether anyone from Foxx said anything to him 

suggesting that Foxx terminated him due to his age, and twice Cartwright responded, “not 

directly.” DE 18, Cartwright Dep., Page ID 117–18, 159:24–161:4. Cartwright’s declaration

clearly and directly contradicts this earlier representation, and the district court was right to 

disregard the inconsistent statement. See Reich, 945 F.3d at 977.

On the other hand, Cartwright’s claim that Phillips discussed the Company’s intent to hire 

younger employees with him on “4-6 occasions” is more an expansion on his deposition testimony 

than a contradiction of it. DE 23-2, Decl. of Kenneth Cartwright, Page ID 402. Asked in his 

deposition “when” his hiring-related dialogue with Phillips occurred, Cartwright answered, 
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“[d]uring a conversation when all this transpired. Even before that, normal conversation.” DE 18, 

Cartwright Dep., Page ID 122, 180:14–16. This response did not pin down an exact date when —

or an exact context in which — Cartwright discussed Foxx’s pursuit of younger employees with 

Phillips, and it left open the possibility that Cartwright and Phillips discussed the topic on multiple 

occasions. Defense counsel failed to follow up on Cartwright’s answer, and Cartwright was under 

no obligation to elaborate. See Aerel, 448 F.3d at 907. Because Cartwright’s “4-6 occasions” 

statement merely clarified his deposition testimony, “provid[ing] the district court with more 

information, rather than less,” the district court abused its discretion when ignoring this portion of 

his declaration. Id.

B.

Whether the district court’s error warrants reversal brings us to the second question 

presented: with the benefit of the allowable testimony from his declaration, has Cartwright 

identified evidence that, when viewed in the light most favorable to him, raises a triable issue of 

fact as to the reason for his termination? We find that he has not.

Cartwright’s age discrimination claims rest on circumstantial evidence,3and he therefore 

proceeds under the burden-shifting framework established in McDonnell Douglas Corporation v. 

Green, 411 U.S. 792 (1973).

4

 Within this framework, “the plaintiff must first establish a prima 

facie case of discrimination; if the plaintiff does that, the employer must identify a legitimate, 

3 The only direct evidence of discrimination that Cartwright presents is his declaration

testimony that Phillips explicitly told him his termination stemmed from his age. See Scheick v. 

Tecumseh Pub. Sch., 766 F.3d 523, 530 (6th Cir. 2014) (“Direct evidence is evidence that proves 

the existence of a fact without requiring any inferences.”) (quoting Rowan v. Lockheed Martin 

Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)). Because we disregard that portion of the 

declaration, Cartwright’s claim proceeds on indirect evidence alone.

4 We analyze Cartwright’s Ohio state law claim under the same standards as his ADEA 

claim. See Wharton v. Gorman-Rupp Co., 309 F. App’x 990, 995 (6th Cir. 2009).
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nondiscriminatory reason for the adverse employment action; and if the employer does that, the 

plaintiff must prove that the employer’s reason is a mere pretext for discrimination.” Sloat v. 

Hewlett-Packard Enter. Co., 18 F.4th 204, 209 (6th Cir. 2021). We review the district court’s 

grant of summary judgment de novo. Id.

Prima Facie Case. Cartwright’s prima facie burden is fourfold. Initially, Cartwright must 

demonstrate: “(1) membership in a protected group; (2) qualification for the job in question; (3) 

an adverse employment action; and (4) circumstances that support an inference of discrimination.” 

Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting Swierkiewicz v. Sorema 

N.A., 534 U.S. 506, 510 (2002)). Only the fourth element is in dispute here.

Ordinarily, an age discrimination plaintiff establishes the fourth element of his prima facie 

case by demonstrating that his employer replaced him with someone significantly younger or 

“treated similarly situated, non-protected employees more favorably.” Willard v. Huntington 

Ford, Inc., 952 F.3d 795, 808 (6th Cir. 2020) (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 

516, 521–22 (6th Cir. 2008)). Yet Cartwright can do neither, and he therefore relies on cases 

where we found that management’s ageist pejoratives and similar age-related comments gave rise 

to a rebuttable inference of discrimination. See, e.g., Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 

326 (6th Cir. 2021). Pointing to Phillips’s assertions that Foxx was pursuing younger employees, 

Cartwright argues that his circumstances are of a piece with this body of caselaw.

Even viewed in the light most favorable to Cartwright, we harbor significant doubt that 

Phillips’s statements support an inference of discrimination. Cartwright is correct that on several 

occasions, we have found that an age discrimination plaintiff met his prima facie burden by 

pointing to age-related remarks from his employer alone. See, e.g., id. And Cartwright is also 

correct that his prima facie burden is a light one. See Provenzano v. LCI Holdings, Inc., 663 F.3d 
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806, 813 (6th Cir. 2011) (age discrimination plaintiff’s “burden at the prima facie stage is ‘not 

onerous’ and ‘poses a burden easily met’” (quoting Cline v. Cath. Diocese of Toledo, 206 F.3d 

651, 660 (6th Cir. 2000))). Nevertheless, the cases in which an employer’s age-related comments

raised a plausible inference of discrimination are distinguishable from Cartwright’s circumstances 

in two meaningful respects. First, in that narrow universe of cases, the remarks typically came 

from an individual with decision-making or managerial authority over the plaintiff. See Blair v. 

Henry Filters, Inc., 505 F.3d 517, 530 (6th Cir. 2007) (derogatory remarks made by plaintiff’s 

“direct supervisor”); Pelcha, 988 F.3d at 325 (remarks made by employer’s “President and CEO 

. . . the individual who terminated [the plaintiff]”); see also Liebau v. Dykema Gossett, PLLC, No. 

23-1301, 2024 WL 1739750, at *4–5 (6th Cir. Apr. 23, 2024) (“We have explained that conduct 

of a nondecisionmaker may be probative of whether an adverse action directed at a plaintiff 

occurred under circumstances supporting an inference of discrimination. Discriminatory 

statements made by individuals occupying managerial positions, moreover, can be particularly 

probative of a discriminatory workplace culture.” (citations and internal quotations omitted)). 

Here, Cartwright fails to identify any evidence suggesting that Phillips possessed decision-making

or managerial authority over him, so Phillips’s comments are minimally probative as to the 

motivations underlying Cartwright’s termination. See Ercegovich v. Goodyear Tire & Rubber Co., 

154 F.3d 344, 356 (6th Cir. 1998) (“[D]iscriminatory statements by a nondecisionmaker, standing 

alone, generally do not support an inference of discrimination . . . .”).

Second, Phillips’s statements are substantively dissimilar from the employer statements

and conduct that we have previously found sufficient to establish a prima facie case. In Blair, the 

plaintiff’s supervisor “(1) repeatedly mocked [the plaintiff]’s age, (2) removed [the plaintiff] from 

a lucrative account because of his age, and (3) told other employees that he wanted younger 
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salesmen.” 505 F.3d at 530. In Pelcha, the defendant employer’s CEO commented that the 

plaintiff’s octogenarian coworker “had reached her ‘expiration date’” and that he “intended to 

reduce [the plaintiff]’s hours until she quit.” 988 F.3d at 325. And in Liebau, the plaintiff’s 

manager “(1) threw her a fiftieth birthday party involving a wheelchair, adult diapers, and fake 

pills, (2) refused to remove the wheelchair from near [the plaintiff]’s workspace despite frequent 

requests to do so, and (3) repeatedly broached the topic of [the plaintiff]’s retirement.” 2024 WL 

1739750, at *4. Measured against these remarks and actions, Phillips’s observation that Foxx was 

interested in hiring younger employees, even if offered on multiple occasions, strikes us as 

relatively innocuous. See Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 896 (6th Cir. 

2020) (“Even if [the plaintiff’s former employer] wanted to attract young people, that says nothing

about terminating older employees.”). This is particularly true where Phillips’s statements are not 

buttressed by any of the more inflammatory indications of age-related bias that we’ve chronicled 

in other cases. See Ercegovich, 154 F.3d at 356 (“[W]hen assessing the relevancy of an allegedly 

biased remark where the plaintiff presents evidence of multiple discriminatory remarks . . . we do 

not view each discriminatory remark in isolation, but are mindful that the remarks buttress one 

another[.]”).

Still, Phillips’s statements exhibit some inculpatory characteristics. Phillips is Foxx’s HR 

representative, so even without direct decision-making authority over employees like Cartwright, 

she presumably possesses some well-informed insights into management’s hiring and firing 

practices. Cf. Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th Cir. 2009) (“Discriminatory 

statements made by individuals occupying managerial positions can be particularly probative of a 

discriminatory workplace culture.”). Phillips also offered her hiring-related observations several 

times, suggesting that her commentary was not the kind of “stray remark” that we have elsewhere 
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dismissed as insignificant. See Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 118 (6th 

Cir. 2007); see also Rowan, 360 F.3d at 549. And importantly, Phillips’s comments to Cartwright 

shared a meaningful nexus with Foxx’s decision to terminate Cartwright, as Phillips offered her 

observations while Cartwright was asking her for advice, presumably as it concerned the 

performance improvement plan that management imposed three months before his termination. 

See Ercegovich, 154 F.3d at 355 (“[A] direct nexus between the allegedly discriminatory remarks 

and the challenged employment action affects the remark’s probative value.”).

Ultimately, and as will shortly become evident, we need not resolve this close call to decide 

Cartwright’s appeal. We therefore assume, without deciding, that Phillips’s statements to 

Cartwright support an inference of discrimination and that Cartwright in turn met his prima facie 

burden. See Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (assuming without 

deciding that plaintiff established a prima facie case of employment discrimination). We thus turn

to the latter two steps in the McDonnell Douglas framework.

Nondiscriminatory Reason. Foxx articulates a legitimate, nondiscriminatory reason for 

terminating Cartwright: Cartwright’s failure to produce any sales. See Majewski v. Automatic 

Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001) (finding that “increasingly poor job 

performance” was a legitimate, nondiscriminatory reason for plaintiff’s discharge). The burden 

therefore shifts back to Cartwright to demonstrate a genuine issue of material fact as to whether 

Foxx’s proffered rationale was, in reality, a pretext for discrimination.

Pretext. To demonstrate pretext, Cartwright bears the burden to produce evidence from 

which a reasonable jury could reject Foxx’s explanation for why it fired him. See Blizzard, 698 

F.3d at 285. Typically, an age discrimination plaintiff does so by showing that his employer’s 

stated explanation (1) has no basis in fact, (2) did not actually motivate his termination, or (3) was 
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insufficient to warrant his termination. Willard, 952 F.3d at 810. But these are not the exclusive

means of demonstrating pretext, and “plaintiffs remain free to pursue arguments outside these three 

categories.” Miles, 946 F.3d at 888. The inquiry, at its core, is a simple one: “did the employer 

fire the employee for the stated reason or not?” Id. (quoting Chen v. Dow Chemical Co., 580 F.3d 

394, 400 n.4 (6th Cir. 2009)). While this inquiry ultimately merges with Cartwright’s larger

burden to demonstrate that Foxx terminated him on account of his age, Cartwright’s sole obligation 

at summary judgment is to marshal evidence that rebuts — in the mind of a reasonable juror —

Foxx’s proffered explanation. Willard, 952 F.3d at 810.

Cartwright fails to do so here. As best we can tell, Cartwright argues that his job 

performance did not actually motivate his termination because Foxx imposed unrealistic and vague 

sales expectations that it knew Cartwright could not meet. As evidence that Foxx’s sales

expectations were unachievable, Cartwright points out that his supervisor struggled to explain how 

the expectations were formulated, that the expectations did not account for the general downturn 

in business resulting from the COVID-19 pandemic, that the expectations were not adjusted for

the time that Cartwright spent on furlough or out sick, and that Cartwright’s supervisor did not 

meet with him weekly (as his performance improvement plan indicated would occur). In a 

nutshell, Cartwright argues that he was “set up to fail.” CA6 R. 15, Appellant Br., at 33. And 

together with Phillips’s comments regarding Foxx’s hiring practices, Cartwright argues, this 

preordained failure demonstrates that his inability to produce sales was mere pretext for his agerelated firing.

A reasonable juror could not infer from these facts that Foxx’s stated rationale was

pretextual. Whatever the finer details of Cartwright’s performance expectations, or Foxx’s 

capacity to explain them, Cartwright does not contest that he failed to make a single sale in over 
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seventeen months of employment. We have previously stated that a plaintiff’s disagreement with 

his employer’s “honest business judgment regarding his work does not create sufficient evidence 

of pretext in the face of the substantial evidence that [the employer] had a reasonable basis to be 

dissatisfied.” Majewski, 274 F.3d at 1116. It cannot be denied that a salesperson’s failure to make 

a sale over a prolonged period is a reasonable basis for his employer to be dissatisfied. And while 

Cartwright’s evidence might cast doubt on his supervisor’s competence or the consumer appetite 

for Foxx’s services, it does not cast doubt on the sincerity of Foxx’s belief that a salesperson should 

be held accountable for not making sales. See id. Any lingering doubt as to the rationale

underlying Cartwright’s termination is quickly extinguished when recalling that two of his sales 

colleagues — one of whom was ten years Cartwright’s junior — were simultaneously terminated 

for the same reason.

C.

In sum, Cartwright fails to identify evidence that would allow a reasonable factfinder to 

infer that Foxx’s stated reason for terminating him was pretextual and that his employment was 

instead terminated because of his age. Summary judgment in favor of Foxx was appropriate, and 

the district court’s failure to consider portions of Cartwright’s declaration was harmless error. See 

Fed. R. Evid. 103(a). 

III.

For the foregoing reasons, we affirm.