NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0483n.06 No. 09-2617 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DAVI D MACDONAL D, Plaintiff-Appellant,

v. UNI TED PARCEL SERVI CE, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) On Appea l from the United States Di strict Court for the Easter n District of Michig an

Be fore : KENNED Y, B OGGS, and SUTTON , Circuit J udg es. BO GGS, Circuit J udg e. David MacD onald drove trucks for United Parce l Service (“U PS”) for over thirty y ear s. Unfortuna tely , the rela tionship betwee n MacD onald and UPS g rew sour, and in ear ly 2007, UPS fired him. MacD onald subsequently sued his former employ er, alleg ing various theories of discrimination and reta liation. The district court g rante d summary judgme nt in favor of UPS, and MacDona ld now appea ls. W e af firm in part a

nd reve rse in par

t. I David MacD onald beg an working for UPS in 1973, when he was 22 y ear s old. After initially working on the dock, MacD onald beg an driving a brown packa g e truck. Around 1980, MacD onald took a position as a fee der driver and drove trac tor trailers f rom Tay lor, Michig an, to the UPS hub in Grand Rapids. He held that position unti l his 2007 termination.No. 09-2617

David Mac

Donald v. UPS As a truc k driver, Ma cDona ld’s safe ty rec ord was stellar. I n September 2004, MacD onald

was g iven his first of three consec utive annual “Circle of Honor” awa rds, rese rved for UPS drivers wit h t we n t y -five y ear s of safe driving

. I ndeed, in his more than thirty y ear s of driving trucks for UPS, MacDonald ne ver ha d an ac cident. MacD onald’s disciplinary rec ord was not quite as impressive, althoug h, in the context of his 34 y ear s at UPS, it is far from troubling. I n 1996, MacD onald was issued a written war ning for using profa nity and refusing to take his bre ak where he was supposed to. I n 1997, MacD onald falsified his time car d and, later, was war ned for driving his fee der truck throug h a wash tunnel. I n 1998, he

was war ned for failing to wea

r non-slip shoes. I n 2000, he was war ned for not knowing his available hours of ser

vice, a nd in 2004, he ag ain used prof anity

. I n ear ly 2005, MacD onald was involved in an automobile acc ident that was not work rela ted, and he suffe red a closed head injury

. As a result of his injuries, MacD onald missed work for near ly three months, fr om January 30 to A pril 18, at which time he was clea red by his doc tor to r esume a normal workloa d. Fr om this poi nt on, most of the fac ts are in dispute. MacD onald testified that, once he returne d to work, he informed his supervisor, J eff Bow en, that he had memory problems as a result of his head injury

. UPS does not dispute that it was awa re of MacD onald’s claimed memory problems, but it sug g ests that MacD onald was faking those memory problems. Appellee ’s Br

. at 5, 25. Ex pert testimony supports both positions: MacD onald’s trea ting phy sicians testified that the y d ia g n o s e d h im w it h me mo r y p r oblems, and a neuropsy cholog ist examined MacDona ld and sug g ested that he was fa king his sy

mptoms.

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David Mac

Donald v. UPS MacD onald’s claimed memory problems are rele vant beca use UPS drivers are rout inely tested on safe ty in fo rm ation, known as the “5 Seeing Habits,” which includes a ten-point commentar

y . Throug hout MacD onald’s long car eer at UPS, he took monthly written tests on the safe ty information and UPS does not dispute that he perf ormed adequa

tely on these tests, both befor e and after his head injury

. Howeve r, o n Ap ri l 11, 2006, UPS subjected MacDona ld—for the first time in his car eer

—to an additional, on-the-spot oral quiz in which he was asked to rec ite the safe ty rules from m em o ry . The parties dispute the leg itimacy of these spot quizz es, althoug h Bow en testified that most dr ivers have never been tested this wa y and that perha

ps 25% of UPS’s driver s, if so tested, would fail. I n addition, a nother UPS driver swore in an aff idavit that, althoug h he had once be en g iven an or al quiz, he had re ceive d “all zeros”a nd there was no follow- up of any kind. I n any case , it is uncontested that MacD onald was unable to rec ite the rules as reque sted. MacD onald was subsequently order ed to study the rules while his truck was being loaded in Gra nd Rapids. This period of time is known as “Centra l Sort” time and would have otherwise be en paid down ti m e. On April 17, MacD onald informed Bow en that, due to linge ring eff ects of his head injury , he was not able to memorize the information. MacD onald also questioned whether the tests

wer e nece ssary in light of his long history of safe driving , which had continued following his injury

. Four day s later, UP S terminated MacDona ld for failing to rec ite the s afe ty rules and for reading a newspa per during Central Sort time instead of study ing the rules. MacD onald filed a g rieva nce with his union, and the termination was reduc ed to a suspension, with the union advising MacD onald to cooper ate with mana g ement in the future

.

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David Mac

Donald v. UPS On September 15, 2006, MacD onald was ag ain asked to rec ite the safe ty rules, and he ag ain failed to do so. During the quiz, MacD onald notified UPS that he continued to suffe r from memory problems and that he had written documentation from his doctor, dated May 15, 2006, as proof. UPS expressed no interest in the medical documentation. Three day s l at er , M acDonald called Tom Hooper , the E mp lo y e e Co n c e r n s Manag er for the corpor ation, and reque sted an acc ommodation: that he be allowed to car

ry UPS’s pocket safe ty car d to use during the oral quizz es. MacD onald testified that he also complained that he was being hara ssed beca use of his memory disability , althoug h UPS disputes that MacD onald fra med his complaint t h at wa y . L ater that same day , MacD onald was terminated for failing to re ci te the safe ty rules. On September 27, MacD onald filed a g rieva nce, stating that “UPS continues to discriminate, intimi date, hara ss, coer ce, and overly s u p e r vise me, with no consideration of my

ag e and phy sical condition.” During the g rieva

nce proce ss, UPS beg an proce ssing MacD onald’s reque s t fo r an

acc o m modation for his disability

. On S eptember 28, a company nurse contacted MacDona ld and reque sted that his doctor complete a medical form detailing his me mory problems. On Octobe r 5, 2006, MacD onald’s phy sician, Dr. Atto, confirme d that MacD onald h ad difficulty rec iting information under pressure and reque sted that he be acc ommodated. On October 16, MacD onald’s termination was ag ain resc inded, althoug h UPS informed him that, during his Central Sort time, he would now be require d to repe atedly write the safe ty rules in a notepad. That same day , MacD onald won his third consec utive Circle of H onor aw ard. On Dec ember 6, 2006, Bow en administered another o ra l safe ty quiz to MacD onald, and MacD onald failed y et ag ain. The events that followed ref lect the level of hostili ty and distrust - 4 -No. 09-2617

David Mac

Donald v. UPS betwee n the parties at this time. Bow en asked MacD onald for the notepad in which he had been told to write the safe ty rules. MacD onald ref used to hand it over. The stalemate ended when, acc ording to MacD onald, Bow en promised to make copies and return the notepad. But, acc ording to Bow en, he promised to return only the copies, keeping the orig inal. Whatever the promise, MacD onald g ave Bow en the notebook, a

nd Bow en made copies but did not return the orig inal. The conflict, howeve r, continued. MacD onald esca lated the situation by calling the Tay lor police depar

tment to repor

t that his proper

ty had been stolen. Corporal Walt er Howell was dispatched to the UPS fac ility and spoke with MacD onald, who reque sted that his persona l items be returne d to him. Howell also spoke with a UPS supervisor and ultimately conclude d that the matter

was mere ly persona l in nature

. Acc ording ly , Howell did not cre ate an incident repor t. Bow en later sent a memo to Pat Gaf fney , the fee der- driver supervisor, about the incident and stated that MacD onald was play ing g ames and that, as a re s u l t , m u l tiple employ ees had to waste their time dealing with him. MacD onald made a complaint of his own to Hooper , stating that his manag er had stolen his personal prope rty

. Shortly afte r the notepad incident, UP S beg an spy ing on MacD onald. On Dec ember 12, 2006, Phill ip Sieg el, a UPS Secur ity Supervisor, initiated a substantial surve illance eff ort direc ted at MacD onald. Seige l testified that, the prior wee k, afte r he had return ed fr o m v ac ation, he was asked to monitor MacD onald to ensure tha t he was ma king g ood use of his time, and that Gaf fney had told him that he was looking for documentation in order to discipline MacD onald. S ieg el persona lly followed MacD onald and also had came ras installed that could rec ord MacD on al d ’s activities while on the clock. UPS’s Security Manage r, Robert P ellicer , stated i n an affidavit t hat - 5 -No. 09-2617

David Mac

Donald v. UPS he had been asked to c onduct surveillance on MacD onald in November 2006, but beca use Pellicer

was not responsible for the Gra nd Rapids hub, Siege l was eventua lly assig ned to conduct the surveillance

. On Dec ember 18, 2006, MacD onald filed two g rieva nces. First, he claimed t h at UPS manag ement “continues to intimi date, hara ss, coer ce, and overly supervise me” and “does not trea t

me with dignity and respe ct and does not g ive due consideration to my ag e and phy sical condition.” Second, he a lleg ed that B owen, unde r the dire ction of Ga ffne y , stole his personal prope rty

. On J anuar

y 3, 2007, UPS denie d MacD onald’s re quest for a n acc ommodation, concluding that “base d upon the medical information that we have rec eived, we are unable to conclude that y ou

are elig ible for a

rea sonable a ccommodation pursua nt to the America

ns with Disabiliti es Ac t.” On J anuar

y 11, 2007, Bow en and another supervisor, Ver n Watson, followed MacD onald while he drove from Tay lor to Gra nd Rapids. They noted t hat M acD onald entered a convenie nce store and exit ed with a soda. They also looked inside the cab of his truck and noted that MacD onald h ad l ef t his hazardous materia ls pouch on his dashboar d instead of his seat. Be fore MacD onald resumed his drive, Bow en told him that he was allowed to stop only to use the restroom, and MacD onald replied, “must have been a nice ride in the packa g e car .” The import of that statement is disputed. UPS arg ues that Bow en was “g rossly insubordinate” by sarc astically ref err ing to the ir uncomforta

ble ride. Appellee ’s Br

. at 13. MacD onald arg ues th at h e m er ely inquired into how comforta ble their ride wa s . Appellant’s Br

. at 29. Ba sed only on these observa tions, UPS fired MacD onald on J anuar

y 19, 2007. MacD onald fierc ely disputes whether any of his rec orded behavior

was in violation of any company policy , and there is cer tainly evidenc e to support his position. For - 6 -No. 09-2617

David Mac

Donald v. UPS example, sever al of his cowor kers s t at ed i n aff

idavits that they wer e awa re of no rule ag ainst purcha sing bever ag es at stops and, indeed, d o s o fr eq u entl y . Also, MacD onald testified that his former supervisor expli citly approve d the prac tice of leaving hazmat pouches on the dashboar d, and another driver aver

red that Bow en himself has left the hazmat pouch on the dashboar d. UPS, for its part, provided evidenc e that it had disciplined other employ ees fo r, at l east in part, making unauthorized stops. After rec eiving the discharg e notice, MacD onald ag ain contac ted Hooper , this time in writing , and complained that the discharg e was “cle arly in retal i at i o n fo r repor ting the incident to the police a

nd also filing a

g rieva nce w ith the union.” MacD onald continued working while hi s g rieva nce over his latest discharg e was p en d i ng , and on J anuar

y 25, 2007, was order ed to ride in a truck with Bow en for training purposes. Ex actly what transpire d during this ride is hotly disputed. For example, both MacD onald and Bow en asser t that they wer e delibera

tely struck by the other with a safe ty vest, and near ly ever y other incident is equally uncer

tain. The only third-par ty witnes s t o an y of the events in question was one of MacD onald’s cowor

kers, who stated in a

n aff idavit tha t he witnessed Bow en hara ss Ma cDona ld. I n any case , Bow en wrote up a memo detailing MacD onald’s alleg ed misbehavior during the drive and sent it to Gaf

fney

. The next day , MacD onald was taken out of service and, on J anuar y 29, 2007,

was fire d

— fo r t he last time—for being “g rossly insubordinate.” Pursuant to the collective barg aining ag ree ment, UPS repla ced MacD onald with Gar y Vinnay , who was eig ht-and-a -half y ear s y oung er tha

n MacD onald. On April 17, 2007, MacD onald fil ed a complaint ag ainst UPS i n Michig an st ate court and

asse rt ed t wo claims of violations of Michig an’s Whis tleblowers Protection Act and Michig an’s - 7 -No. 09-2617

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Donald v. UPS Persons with Disabiliti es Ac t. On May 8, UPS, citing diversity of citizenship, re moved the action to the United States District Court for the Easter n District of Michig an. See 28 U.S.C. § 1332. On J une 23, 2008, MacD onald amende d his complaint to add tw o m o re s tate-la w claims. The new claims included an alleg ation of ag e dis c r im in a tion under Michig an’s Elliott -L arse n Civil Rights Act and alleg ations of re taliation for having made c omplaints of ag e and disa bility discrimination. On J une 5, 2009, the district court g rante d summary judgme n t i n fa v o r o f UP S o n all of MacD onal d ’s claims. The district court first considere d MacD onald’s ag e-discr imination claim. The court held that MacD onald h ad n o t d emonstrated direc t evidenc e of ag e discrimination and, al t h oug h he established a prima facie case of circ umstantial discrimination, he failed to cr ea t e a g enuine issue of materia l fac t that UPS’s stated rea son for the termination was prete x tual. Next, the court considere d the disability -discrimination claim and held that MacD onald was not disabled for purposes of the act, nor did U PS per ceive him as disabled for purposes of the act. Third, the court considere d MacD onald’s reta liation claims. T h e court held that MacD onald’s g rieva nces did not constitute protec ted activity and, in the alterna tive, that MacD onald failed to establish a ca u s al

connec tion betwee n the activity and UPS’s disci p l i n ar y action ag ainst him. Finally , the court reje cted MacD onald’s whistleblower claim. The court held that, althoug h MacD onald’s call to the police was a protec ted activity , he failed to show a causa l c onnection betwee n that activity and his termination. The district cour

t denied Mac Donald’s moti on for reconsider ation on Dec ember 11, 2009, and MacD onald filed this timely appea l on Dec ember 18, 2009. This court has jurisdiction to revie w the final judg ment of the district cour t. 28 U.S.C. § 1291. - 8 -No. 09-2617

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Donald v. UPS I I This court revie ws a district court’s g rant of summary judgme nt de novo. Hamilton v. Gen. Elec. Co. , 556 F.3d 428, 433 (6th Cir. 2009). Summary judgme nt is appropr iate wher e, “view[ing ] all fac ts and infere nces in the light most favor able to the non-moving party ,” the evi d en ce in the

rec ord shows “that there is n o gen u i ne issue as to any materia l fac t and the movant is entitled to judgme nt as a matter

of law.” Ibid .; Fed. R. Civ. Proc. 56(c ). I I I A MacD onald alleg es ag e discrimination in violation of Michig an’s Elliott -L arse n Civil Rights Act (“EL CRA”), which provides that an employ er shall not “discha rg e, or otherwise discrim inate ag ainst an individual with respe ct to employ ment, compensa

tion, or a term, condition, or privileg e of employ

ment, beca

use of . . . a g e . . . .” M I C H . C O M P . L A W S § 37.2202(1)( a). A plaintiff can support a claim of ag e discrimination either by direc t evidenc e of bias, which MacD onald does not claim to have, or by circ umstantial evidenc e throug h the McD onnell Douglas framework. Hazle v. Ford Motor Co. , 628 N.W .2d 515, 520–21 (Mich. 2001); Reply Br

. at 20 (“ M acD onald is not making a ‘direc t evidenc e’ arg ument on his ag e discrimination claim.”) ; see McD onnell Douglas Corp. v. Green , 411 U.S. 792, 802–03 (1973). I n order to establish a prima facie case of ag e discrimination, a plaintiff must show that he “wa s (1) a member of a prote cted class, (2) subject to a n adver se employ

ment action, (3) qualified for the position, and that (4) other s , simil arly situated and outside the protec ted class, wer e unaff ecte d by the employ er’ s adver se conduct.” Town v. Mi ch

. B el l Tel. Co. , 568 N.W.2d 64, 68 - 9 -No. 09-2617

David Mac

Donald v. UPS (Mich. 1997). The fourth element has alterna tively been descr ibed as whether the plaintiff was fired “under ci rc u m stance s that g ive rise to an inferenc e of unlawful discrimination,” Lytle v. Malady , 579 N.W.2d 906, 914 (Mich. 1998), and can be established by demonstrating that the plaintiff was repla ced by

a y oung er pe rson, i d . at 916. I f the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employ er to articula te a nondiscriminatory rea son for its action, an d i f t he employ er does so, the burden shifts back to the plaintiff to demonstrate that the employ er’ s proff ere d rea son is prete x tual. McD onnell Douglas , 411 U.S. at 802–03. Notably , the plaintiff can defe at an opposing motion for summary judgme nt only if hi s ev idence of prete x t “also raises a triable issue that discriminatory animus was a motivating fac tor underly ing the employ er’ s adver se action. I n other words, plaintiff must not mere ly raise a triable issue that the employ er’ s proff ere d rea son was prete x tual, but that it

was a prete x t for ag e or se x discrimination.” Lytle , 579 N.W.2d at 916. B On appea l, UPS does not dispute that MacD onald has established the first three elements of

a prima facie case of ag e discrimination: he is a member of a protec ted class, he was fired from his job, and he was qualified for the position. Acc ording ly , the only element in dispu t e i s wh et h er MacD onald was fired “under circ umstances that g ive rise to an infere nce of unlawful discrimination.” Id . at 914. MacD onald has failed to establish a prima face case of ag e discrimination. At the time M ac Do n ald was discharg ed, he was 56 y ear s old, and he was repla ced by Gar y Vinnay , who wa s

near ly 48 at t i m e. Although the eig ht-and-a -half y ear ag e differe nce cer tainly qualifies Vinnay as - 10 -No. 09-2617

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Donald v. UPS y oung er than MacD onald, he is not substantially so, and therefor e Vinnay ’s age d oes not by itself sug g est that a discriminatory animus was involved. See Lytle v. Malady , 566 N.W.2d 582, 599 (Mich. 1997) (vac ated in part by Lytle , 579 N.W.2d 906); McCarthy v. USA Credit Union , 2010 WL 2629788, at *6 (Mich. Ct. App. 2010) ( unpublished per c uriam opinion). More signific antly , Vinnay was not hired by manag ement for the position, but acquir ed the p o sition pursuant to a collective barg aining ag ree ment. I ndeed, Vinnay had alre ad y b ee n an employ ee of UP S fo r near ly thirty y ear s, and once MacD onald’s position beca me vaca nt, it was Vinnay ’s for the taki ng . Ordinar ily , a repla ceme nt selec ted pursuant to a collective barg aining ag ree ment does not g ive rise to an infere nce of discrimination. S ee Mlinaric v. Parker Hannifin Corp ., 853 F.2d 927, at *5 (6th Cir. 1988) (unpublished table decision). Her e, MacD onald testified that Gaf fney inquired into Vinnay ’s interest in the job befor e MacD onald was fired, which, viewed in the light most favor able to MacD onald, sug g ests that UPS knew Vinnay was next in line and fired MacD onald only upon confirm i n g t hat he would be repla ced by a y oung er worke r. Howeve r, MacD onald’s testimo n y wa s t h at Vinnay had told MacD onald that Gaf fney had previously asked Vinnay about his interest in MacD onald’s job. This is pure hear say and is inadmissible for purposes of sum mary judgme nt, Jack lyn v. Schering-P lough Healthcare Prods. Sales Corp ., 176 F.3d 921, 927 (6th Cir. 1999), and Vinnay ’s aff idavit, which is extremely favor able to MacD onald’s position, make s n o m ention of the alleg ed inquiry

. Acc ording ly , the fac t that MacD onald was repla ced by Vinnay , less than nine y ear s his junior, pursuant to the collective barg aining ag ree ment, does not by itself g ive rise to an inf

ere nce of unlawful discr imination.

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Donald v. UPS MacD onald points to additional piece s of circ umstantial evidenc e of ag e discrimination, but this evidenc e fails to cr ea t e a gen u ine issue as to whether he was fired beca use of his ag e. For example, Ma cDona ld te stified that Bow en told him to “ move [hi s] old ass” during the contentious events of J anuar

y 25, 2007, but Bow en is only three y ear s y oung er than MacD onald, so even viewed in the light most favor able to MacD onald, this statement does li t t l e fo r him. MacD onald also testified that various UPS manag ers made a few stray rema rks about his retire ment plans, but inquiri es i n t o retire ment plans do not g ener ally constitute evidenc e of discrimination, Heim v. Meadwestv aco Corp ., 2006 WL 1410857, at *2 (Mich. Ct. App. 2006) (unpublished per curia m opinion), and without additional evidenc e of ag e d i s cr i m i n at ion, they do not do so here

. Significa ntly , althoug h multipl e UPS drivers aver red that they wer e trea ted better than MacD onald, it does not appea

r from the rec ord that any are signific antly y oung er than MacD o nald. Mike Boka tzi an, for example, aver red that he was trea

ted better than MacD onald, but he had been a UPS employ ee for 32 y ear s, near ly as l ong as MacDonald. And Norman Wahla, who also aver red that he was trea ted better than MacD onald, had been employ eed by UPS for 36 y ear s, even longe r than MacD onald. I ndeed, a ll of the aff idavits tha t suppor

t Ma cDona ld’s g ener al position were f iled by

cowor kers old enoug h to have worke d at UPS for more than 30 y ear s, indicating that, althoug h MacD onald was trea ted differ ently than other worke rs, it was not beca use of his ag e. Acc ording ly ,

1 MacD onald has not c rea ted a g enuine issue of materia l f act as to whether he was terminated under

Although y ear s at UP S may g ener ally be a bad prox y for ag e, MacDonald beg an working 1 at UP S at t he age of 22. I t is there fore u n l i k el y t hat a cowor ker with a si milar number of y ear s at UPS could be signific antly y oung er. - 12 -No. 09-2617

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Donald v. UPS circ umstances that g ive rise to an infere nce of ag e discrimination, and summary judgme nt in UPS’s favor was prope r. I V A MacD onald alleg es that UPS v io lated his rig hts under the Michig an Persons with Disabilities Civil Rights Act (“PWDCRA”), which provides, in r eleva nt pa rt, that “[t] he opportunity to obtain employ ment

. . . without discrimination beca use of a dis ability is g uara nteed

. . . .” M I C H . C O M P . L A W S § 37.1102(1). I n addition, an employ er “shall acc ommodate a person with a disabil i t y fo r purposes of employ

ment

. . . u n l es s the [employ er] demonstrates that the acc ommodation would impose an undue hardship.” Id

. at § 37.1102(2). The analy sis of a PW DCRA claim g ener ally para llels that under the Americ ans with Disabilities Act. Chmielewski v. Xermac , Inc ., 580 N.W.2d 817, 821 (Mich. 1998). I n order to prove a violation of the PW DCRA, a plaintiff must show that: (1) he is disabled

as define d in the act, (2) his disability is unrela ted to his ability to perf orm the job duties, and (3) he has been discriminated ag ainst as define d in the statute. Pede n v. City ofDetroit , 680 N.W.2d 857, 863 (Mich. 2004). As d ef i n ed in the act, a disability is a “dete rminable phy sical or mental ch ar ac t er i s t ic of an individual, which may result from

. . . injury , . . . if the char acte ristic

. . . substantially limit s 1 or more of the major life activities of that individual.” M I C H . C O M P . L A W S § 37.1103(d)( i)(A)

. Alterna tively , a plaintiff can demonstrate a disability for purposes of the act if he

can show that he is “re g arde d as having a d et er m i n ab l e phy sical or mental char acte ristic” as descr ibed in the ac t. Id . at § 37.1103(d)( iii). - 13 -No. 09-2617

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Donald v. UPS Wit hout direc t evidenc e of disability discrimination, a claim under PW DCRA is subject to the same McD onnell Douglas burden- shifti n g fr am ew ork as MacD onald’s claim under EL CRA. Pede n , 680 N.W.2d at 864. B Primarily at issue on this claim is whether MacD onald has cre ated a g enuine issue of materia l fac t as to whether he satisfies PW DCRA’s definition of a disability

. The district court held that he has not, and we ag ree . Although MacD onald can demonstrate that his memory problem is a “dete rminable .

. . m en t al char acte ristic” that was caused by an inj ury , he mus t also show that the char acte ristic “substantially limit s” one of his “major life activities.” M I C H . C O M P . L A W S § 37.1103(d)( i)(A)

. Be cause he cannot do so, he fails to establish that h e i s disabled pursuant to PW DCRA and summary

judgme nt was prope r. The first issue is whether “thinking” constitutes a major life activity

. There are no PW DCRA

ca s es o n this point, but rele vant ADA case s highlig ht the issue. I n 2008, Congr ess amende d t h e ADA to expli citly include “thinking” as a major life activity , but that amendment does not speak to this case , wher e all of the rele vant conduct occ u rr ed b y J anuar y 2007. Verhoff v. Time W arner Cable, Inc ., 299 F. App’x 488, 493–94 (6th Cir. 2008). Under the pre- amende d ADA in eff ect during the rele vant time period here , this court held, albeit in an unpu b l i s hed dispositi on, that thinking is not a major life activity

. Hill v. Metro. Gov’ t of Nashville , 54 F. App’x 199, 201 (6th Cir. 2002). Also in an unpubli shed di sposition, this court held that “conc entra ting” i s not a major life activi t y . B o erst v. Gen. Mills Operations, Inc ., 25 F. App’x 403, 406 (6th Cir. 2002). Those h oldings wer e questioned in a later unpublished opinion that assumed, without holding, th a t th in k in g - 14 -No. 09-2617

David Mac

Donald v. UPS is a major life ac t i v ity

. Verhoff , 299 F. App’x at 493 (“[I ]t seems a bit bizarre to flatly say that thinking—the very activity that makes us human—is not ‘major’ enoug h.”). I n addition, other circ uits have held in published opinions that thinking is a major life activity under the pre- amende d ADA. Head v. Glacier Nw. Inc ., 413 F.3d 1053, 1061 (9th Cir. 2005); Taylor v. Phoenixv ille Sch. Dist ., 184 F.3d 296, 307 ( 3d Cir. 1999). We need not resolve the dispute as to whether thinking is a major life activity under PW DCRA or the pre- amen d ed AD A beca use, even if it is, MacD onald has not cre ated a g enuine issue of materia l fac t as to whether his memory problem substantially limit ed his thinking. Michig an courts have looked to the ADA reg ulations for g uidance as to the meaning of “substantially limit ed” for purposed of PW DCRA. Klimkowski v. W ayne Cnty ., 1998 WL 1988424, at *4 (Mich. Ct. App. 1998) (unpublished per curia m opinion). The ADA reg ulations explain that “substantially limit ed”

means that an individual is “[u] nable to pe rfor m a major life activity that the aver ag e person in the g ener al population can perf orm; or . . . [i s s]i g nificantly restric ted as to the condition, manner or duration under which an individual can perf orm a particula

r life activity as compar ed to the condition, manner , or duration under which the aver ag e person in the g ener al population can perf orm that same major life activity .” 29 C.F.R. § 1630.2(j). MacD onald’s evide nce of his disabilit y

is insufficient to cre ate a g enuine issue of materia l fa ct as to whether he meets this definition of “substantially limit ed.” First, MacD onald points to testimony by his wife, daug hter, and doctor that he was unable to rec ite the UPS safe ty information from memory

. But MacDonald c oncede s that 25% of UPS drivers would not be able to rec ite the safe ty information, and, in any case , his ability to perf orm a discrete memorization task is but a small - 15 -No. 09-2617

David Mac

Donald v. UPS component of his ma

jor life activity of “thinking.” See Singh v. George W ashington Univ. Sch. of Med. and Health Scis. , 508 F.3d 1097, 1104 (D.C. Cir. 2007) (holding that test-taking is not a major life activity , but is rat h er a co m p o nent of one, and the “limitation [m ust be] substantial from the perspe ctive of the m ajor li fe activity as a wh ole”)

. I n addition, MacD onald’s family testified t hat he routinely forg ot to do things such as run err ands, l et t he dog back i nside the hous e, and put the g arba g e out on g arba g e day

. MacD onald also neede d to be reminded about family events such as birthday s and anniver saries, and in order to reme mber to take his daily medications, he needs to use

a sy stem wher e the medicine container s are alig ned in a cer tain way . These unrema

rkable lapses in memory differ neither i n k i n d n o r in mag nitude from those aff ecting the aver ag e person. See E.E.O.C. v. Sa r a L ee C o rp ., 237 F.3d 349, 353 (4th Cir. 2001) (holding that examples of forg etfulness suffere d by many other adults, including f org etting to take medications, “do not rise to the level of a substantial limit ation”). I ndeed, MacD onald’s own doctor testified that his memory problems wer e mild in nature

. Fur ther, the q uestion is not whether MacD onald is substantially l imited only in his ability to memorize, but whether his memory problems substantially limi t h i s ability to think, taken as a whole. Ma cDona ld fails to cre ate a g enuine issue of materia l f act as to this point . Acc ording ly , MacD onald’s PWDCR A claim fa ils at the summary judgme nt stag e. I n the alter

native, Mac Donald ar g ues that there is suf ficient evidenc e for a jury to f ind that UPS reg arde d him as disabled. W e hold otherwise. I n order to show that UPS reg arde d him as disabled, MacD onald must show t h at UP S knew about his impairment and believed that his impairment signific antly impacted a major life activity

. Chiles v. Mach. Shop, Inc ., 606 N.W.2d 398, 406–07 (Mich. Ct. App. 1999). UPS does not dispute that it kne w about MacD onald’s inability to - 16 -No. 09-2617

David Mac

Donald v. UPS

me mo r iz e th e s a f

e ty information, but MacD onald must g o further and demonstrate that UPS believe d that MacD onald was substantially impaired in his ability to think, and he fails to do so. There is no evidenc e that MacD onald ever told UPS that he had problems with memory other than rec iting the safe ty information on the spot, a nd indeed, MacD onald testified that he did not tell a ny one at UPS manag ement about these problems. Nor did the note from MacD onald’s phy sician inform UPS as to any substantial impairments, stating only that “Mr. Macdona ld [si c] is experien ci n g s o me problems wi t h short term memory following his closed head injury in J anuar y 2005.” UPS also allowed MacD onald to continue driving trucks af t er i t beca

me awa re of his memory problems, strong ly sug g esting that it did not perceive him as substantially impaired in his ability

to think. MacD onald arg ues that, pursuant to this court’s decision i n R o s s v. Campbell Soup Co. , evidenc e of a prete x tual rea son for an adver se employ ment action can support an infere nce that the empl o y er co nsidered the employ ee disabled. 237 F.3d 701, 708 (6th Cir. 2001). Although MacD onald is corr ect that there is substantial evidenc e that UPS’s proff ere d rea sons for firing him

wer e prete x tual, there is no evidence that the pre text was on a ccount of UPS’s belief that he ha d a disability . I n Ross , the pl aintiff had told the employ er that he was disabled within the meaning of the act, and the employ er ultimately fired the plaintiff beca use he was not qualified for the position, which itself could b e re l at ed to his impairments. Id

. at 707–08. Taking these piece s of evidenc e toge ther, the Ross court held that ther e wa s a g enuine issue of materia l fac t as to whether the employ er thought that the plaintiff was disabled. Her e, there is no evidenc e that UPS was told that MacD onald was disabled for purposes of the act, and its proff ere d rea son for firing him was that he

was g rossly

insubordinate, which doe s not raise a suspicion of discrimination ba sed on disability

. - 17 -No. 09-2617

David Mac

Donald v. UPS Ross , then

, does n o t co n t rol this case . I f prete x t in and of itself could prove knowledg e of a disability , then it could also prove knowledg e of any other improper motive, allowing a plaintiff to

succe ed on any discrimination claim without a shred evidenc e of a particula r ty pe of discrimination. We do not rea d Ross to g o that far

. I n this case , MacD onald’s evidenc e of prete x t does not constitute evidenc e that UPS believed that he was disabled. MacD onald also points to a district court opinion in which the court held that, in a differe nt case , UPS reg arde d an employ ee as disabled. Dunning

v. United P a r ce l S

er v. , 471 F. Supp. 2d 795, 808–09 (E.D. Mich. 2007). But, the name of the defe ndant aside, that case does not rese mble this one in any meaning ful way . I n Dunning , there was signific ant evidenc e that UPS believed that the plaintiff was substantially limit ed i n h i s ab i l i t y to perf orm a varie ty of core functions. Ibid

. There i s n o s i m i l ar evidenc e here , and MacD onald’s “re g arde d as” a

rg ument fails. V A MacD onald alleg es claims under the anti-re taliation provisi o n s o f both EL CRA and PW DCRA. EL CRA provides that “a person shall not

. . . [r] etaliate or discriminate ag ainst a person beca use the person has opposed a violation of this act, or beca use the person has made a char g e, filed

a complaint, testified, assisted, or participa ted in an investiga tion, proce eding , or hear ing under this act.” M I C H . C O M P . L A W S § 37.2701(a)

. PW DCRA includes a materia lly identical provision. Id. at § 37.1602(a)

. I n ord er t o est ablish a prima facie case of reta liation under either statute, a plaintiff must show that: (1) h e eng ag ed in protec ted activity (2) that was known by the defe ndant, and (3) the - 18 -No. 09-2617

David Mac

Donald v. UPS defe ndant took an adver se employ ment action ag ains t h i m , and (4) his protec ted activity was a “sig nificant fac tor” for the employ er’ s adver se action. Aho v. Dep’ t of Corr. , 688 N.W.2d 104, 108 (Mich. Ct. App. 2004); Barrett v. Kirtl and Cmty. Coll. , 628 N.W.2d 63, 70 (Mich. Ct. App. 2001). Protected activity includes char g ing a violation of the act, and althoug h the char g e need not cite the

s tatute at issue, it “must clea rly convey to an objective employ er that the employ ee is raising the

s p ecter of a claim of unlawful discrimination” under the statute. Barrett , 628 N.W.2d at 72. I n contra st, a reque st for an acc ommodation under PW DCRA is not protec ted activity for purposes of stating a claim for re t al i at i o n b eca use it does not char g e a violation. Bachman v. Swan Harbour Assocs. , 653 N.W.2d 415, 437–38 (Mich. Ct. App. 2002). Notab ly , a reta liation claim under 2 PW DCRA does not require that the underlying char g e have merit, but only that the char g e be made. Bryson v. Re

gis Corp ., 498 F.3d 561, 577 ( 6th Cir. 2007). Once a plaintiff establishes a prima fac ie case of reta liation, the familiar McD onnell Douglas burden- shifting f

rame work is employ ed. Aho , 688 N.W.2d at 109. B There is no dispute that MacD onald has demonstrated the second and third elements of his prima facie case : UP S k n ew ab o ut his complaints and took an adver se action ag ainst him. The

MacD onald ar gu es t o t he contrary , but cites no authority that calls i nto question the clear 2 holding of Bachman

. I n Gembus v. MetroH ea l t h S ys t em , for example, this court assumed that a reque st for an acc ommodation was protec ted activity for purposes of Ohio law wher e the parties did not dispute the issue. 290 F. App’x 842, 847 (6th Cir. 2008). MacD o n al d also cites two district court o p i n i o ns that held t hat a reque st for an acc ommodation is protec ted activity for a reta liation claim made pursuant to Ohio law or the ADA. Appellant’s Br

. at 41. Significan t l y , MacD onald cites no authority that contra dicts Bachman ’s holding that a reque st for an acc ommodation is not protec ted ac tivity

for pur poses of a reta liation claim pursuant to PW DCRA.

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Donald v. UPS

rema ining, disputed elements are wh ether MacD onald’s complaints constituted protec ted activity and whether there was a causa l connec tion betwee n that activity and UPS’s action. The district court held that MacDonald failed to cre ate a g enuine issue of materia l fac t as to either element. We disag ree and re verse the district court’s g rant of summar y judgme nt in favor of

UPS. MacD onald points to the following as evidenc e of his protec ted activity

. On September 18, 2006, he called Hooper and, viewing Hooper ’s deposition testimony in the light most fa

vorable to MacD onald, complained that his manag er s we re hara ssing him beca use of his disability

. S p ec ifically , Hooper testified that MacD onald told him that he was being hara ssed and t h at h i s supervisors “we re g iving him a hard time with respe ct to his disability .” That same day , MacD onald reque sted an acc ommodation and stated that he has a disability

. On Se ptember 27, 2006, MacD onald filed a g rieva

nce tha t alleg ed that “U PS continues to di scriminate . . . with no consideration of my ag e and phy sical condition.” On Dec ember 18, 2006, MacD onald filed a g rieva nce alleg ing that “UPS manag ement continues to intimi date, hara ss, coer ce, and overly supervise me . . . and does not gi v e d ue consideration t o my ag e and phy sical conditi on,” and also “disreg ard[s]” his “rig hts as a human being .” Finally , on J anuar y 22, 2007, MacD onald sent a letter to Hooper that acc used UPS of reta liating ag ainst him for calling the police and filing a g rieva nce rela ted to the notebook incident and re quested that UPS do something to stop “this on-g oing ha rassment a

nd discrimination.” The district court held that MacD onal d ’s grieva nces did not constitute protec ted activity beca use they did not alleg e that MacD onald was trea ted differ ently beca use of his ag e and disability , but rathe r t hat he should have been tre at ed d i ff er entl y and was not. This takes too narr ow a view both of MacD onald’s actions and what is require d by the rele vant statutes. Viewe d in the best light - 20 -No. 09-2617

David Mac

Donald v. UPS to MacD onald, his September 18, 2006, call to Hooper alleg ed mistreatment because of his disabili ty , and this c lear ly constitutes pr otected activity

. See M I C H . C O M P . L A W S § 37.1102(1). I n addition, MacD onald’s September 27, 2006, g rieva nce rea sonably alleg es a claim under PW DCRA, which not only prohibits differ ent treat m en t b ec ause of a disability , but sometimes require s

acc ommodations beca

use of a disability

. Id

. at §37.1102(2). MacD onald had reque sted an

acc ommodation for his disability just over a wee k prior to filing the g rieva nce, so his acc usation that UPS discriminated ag ainst him “with no consideration of my . . . phy sical condition” can be rea d to char g e a violation of PW DCRA, and it there fore constitutes protec ted activity

. Ison v. Lakeland Reg’l Health Sys ., 149 F.3d 1183, 1998 WL 3 44033, at *2, *4 (6th Cir. 1998) (unpublished table decision). Simi larly , the Dec ember 18, 2006, g rieva nce can be rea d to charge a violation of PW DCRA’s rea sonable-a ccommodation require ment. MacD onald’s September 18, 2006, reque st for an acc ommodation does not on its own constitute protec ted activity , and MacD onald’s J anuar y 22, 2007, letter to Hooper makes no ref ere nce to any co n d u ct that could potentially violate either EL CRA or PW DCRA and s i m i l ar ly does not constitute protec ted activity

. See Mitan v. Neiman Marcus , 613 N.W.2d 415, 416 (Mich. Ct. App. 2000). Stil l, MacD onald has cre ated a g enuine issue of materia l fac t as to whether he eng ag ed in protec ted activity on September 18, September 27, and Dec ember

18, 2006. The rema ining issue is whether MacD onald has established a g enuine issue of materia l fac t

as to whether MacD onald’s protec ted activities wer e a sig nificant fa ctor in UPS’s decision to take action ag ainst him

. Although, as the district court noted, MacD onald must show more than a

- 21 -No. 09-2617

David Mac

Donald v. UPS temporal connec t i o n b etwee n his protec ted conduct and the adver se action, he has done so here

. W est v. Ge n. Motors Corp. , 665 N.W.2d 468, 473 (Mich. 2003). Viewe d in the light most favor able to MacD onald, the rec ord demonstrates a g enuine issue of materia l fac t as to causa tion and prete x t. I n that light, the fac ts a nd rea sonable infere nces are as follows. MacD onald eng ag ed in protec ted activity on September 18, 2006, and was fired the same day

. He returne d to work on October 16, 2006, and was immediately require d to write the safe ty rules o v er an d o v er again in a notebook while hi s cowor kers had down t ime. Viewe d in the l ight most favor able to MacD onald, t h i s require ment was punitive. Although Bow en testified that the require ment was to help MacD onald reme mber the rules, he also testified that no employ ee had ever been made to do it befor e, he did not know if it would be helpful, and he knew that MacD onald was embar rasse d by the require ment. Fur ther, within as littl e as two wee ks, UP S o rder ed that surveillance be conducte d on MacD onald, wi t h t h e go al of disciplining him, and as soon as the

secur ity supervisor was available , MacD onald was subject to extreme scrutiny in the form of hidden

s u rv ei l l ance came ras and tails. MacD onald ag ain eng ag ed in protec ted activity on Dec ember 18 , 2006. Three wee ks later, MacD onald was tailed by two supervisors, who looked for and documented the most mini scule of inf

rac tions, whic h wer e not e nforc ed ag ainst other drive rs. UPS terminated MacD onald for t h o s e i nfra ctions the foll owing wee k, and a wee k later, MacDona ld was sent on a training ride with a supervisor, who fabr icated a story of g ross insubordination. The following day , MacD onald was r emoved f rom servic e. Fr om this s eq u en ce of events, a reasonable jury could conclude bot h that MacD onald was fired beca use h e e n g a g e d in p r o te c te d a c ti v it y a nd—much more easily

—that UPS’s proff

ere d rea sons - 22 -No. 09-2617

David Mac

Donald v. UPS for firing MacD onald wer e prete x tual. MacD onald was fired the very day he eng ag ed in protec ted activity

. Although the g ener al rule is that temporal proxi mity is insufficient to raise an infere nce of

causa tion, in case s wher e the temporal proxi mately is unusually sug g estive, it can raise s uch an infere nce. Mick

ey v. Zeidler Tool & Die Co. , 516 F.3d 516, 5 2 4–25 (6th Cir. 2008) (infer ring a

causa l connec tion wher e employ er took action the same day it lear ned of protec ted activity

). I n any

case , it is not the initial termination that MacD onald challeng es, but the ultimate one in J anuar y , and

even if the temporal proxi mity is by its elf insufficient to establish causa tion for the September termination, it surely const i t utes some evidenc e of UPS’s reta liatory mindset for purposes of deciding the issue of causa tion for the J anuar

y termination. Fur

ther, shortly afte r returning to work, MacD onald was subjected to heig htened scrutiny , a fac tor that this cou rt has held can establish a

causa l connec tion for purposes of a re t ali ation claim. Hamilton , 556 F.3d at 435. Although MacD onald was not put under surveillance u n t i l early Dec ember , UPS took steps to initiate the surveillance —which MacDonald had never been subjected to befor e—as lit tle as two weeks after his return. See id. at 436 (“The fac t that the scrutiny increased is critica l.”); Upshaw v. Ford Motor Co. , 576 F.3d 576, 581, 588–89 (6th Cir. 2009) (holding that, wher e employ er took steps to initiate heig htened scrutiny shortly aft er the employ ee eng ag ed in protec ted activity but did not actua lly eng ag e in heig htened scrutiny until over a month later, a g enuine issue of materia l fac t exis ted as to

causa tion for a reta liation claim). Acc ording ly , summary judgme nt in favor of UPS on the reta liation claim was imprope r.

- 23 -No. 09-2617

David Mac

Donald v. UPS VI A MacD onald asser

ts an action under Michig an’s WPA, which provides that “ [a] n employ er shall not discharg e, threa ten, or otherwise discriminate ag ainst an employ ee . . . b ec ause the employ ee . . . repor

ts

. . . a violation or a suspected violation of a law or re gu l at i o n . . . .” M I C H . C O M P . L A W S . § 15.362. A pl aintiff mus t establish a prima fac ie case under the W PA by showing that he (1) was eng ag ed in protec ted activity , (2) was discharg ed, and (3) a causa l connec tion exis ts betwee n the two. Shallal v. Catholi c Soc. Servs. of W ayne Cnty

. , 566 N.W.2d 571, 574 (Mich. 1997). I n Shallal , the M ichig an S upreme Court held t hat, in order to rec over unde r the WPA, the plaintiff must have pursued “an altruistic motive of protec ting the public.” Id

. at 579. I n that case , the employ ee threa tened to blow the whistle ag ainst her employ er in order to reta in her job, and the court held that, beca

use she had an extorti ve motive, “no rea sonable juror could conclude t h at plaintiff threa tened to repor t [her employ er] out of an altruistic motive of protec ting the public,” and that “the Michig an L eg islature [di d not] intend[] the Whis tleblowers Act to be used as an offe nsive

wea pon by disgr

untled employ ees.” Ib i d

. The dist rict court noted t hat, i n Phinney v. Perlmutter , the Michig an Court of Appea ls allowed a WP A claim to proce ed that was premised on an alleg ation of larc eny that was made for persona l g ain, but tha t c ase was decide d befor e Shallal . 564 N.W.2d 532, 555 (Mich. Ct. App. 1997). More signific antly , there is no indication that the Phinney plaintiff repor ted her employ er beca

use she was vindictive or disgr untled as opposed to having a g enuine belief tha t a violation had occ urre d. Id . at 554–55.

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David Mac

Donald v. UPS B MacD onald fa ils to create a g enuine issue of materia l fac t that he ac ted out of a g ood-fa ith desi re to protec t the publ ic, as opposed t o out of personal vindictiveness, and pursuant to Shallal , he is prec luded from rec overing under the WP A. Her e, it is not disputed that MacD onald called the Tay lor Police Depa

rtment for the sole purpose of retrie ving his notepad, and no t to p r otect the public. Def endants arg ue that MacD onald’s persona l interest is alone sufficie nt to kill his WP A claim, but the appropr iate question is not simply whether MacD onald’s actions further ed his persona l interests, but whether he acte d in bad faith. See Shallal , 566 N.W.2d at 579; Edward v. W

. Branch-Rose City Area Schs. , 2002 WL 199 8 5 5 8 (M i ch. Ct. App. 2002) (unpublished per curia m decision). Her e, MacD onald chose to call the police to esca late a minor spat over whether he should be able to keep his handwr itten copies of the UPS safe ty rules, as opposed to photocopies of his handwr itten copies

o f t h e UP S s afe ty rules, which he was in fac t g iven. I t is undisputed that MacD onald had b ee n notified in writing that he was require d to submit to UPS his written work eac h day , and that this work would be kept on file by UPS. Under these circ umstances, no rea sonable juror could conclude that MacD onald acte d under a g ood-fa ith belief that a criminal violation had occur red, and he there fore cannot r ecove r under the WPA. The office r sent to the scene had no d i ff i cu l t y s ee i n g t h e s i t u at ion for what it was: not a l egi t i m ate public conce rn, but rathe r a wholly unnece ssary esca lation of a petty persona l dispute. I n his affida vit, Corporal Howe ll ex plained: Mr. MacD onald told me that a supervisor had stolen some paper s from him that wer e, acc ording to Mr. Macdona ld, his pe rsonal prope rty . Mr. Mac Donald stated tha t he

- 25 -No. 09-2617

David Mac

Donald v. UPS wanted his persona l items returne d to him. He did not want any other kind of relief

. Ba sed on my discussion with Mr. MacD onald and the others prese nt, I conclude d that the alleg ed incident was not a police matter, but instead a private matter betwee n the individuals in question. I told Mr. MacD onald that the dispute betwee n him and UPS was a private ma tter. I do not believe that the alleg ed taking of Mr. MacD onald’s paper s posed a threa t to the public. I

also told Mr. MacDona ld, based on our discussion, tha t I believed the papers i n q u estion wer e not actua lly his persona l proper ty , but instead belonge d to UPS. I explained to Mr. M acD onald and the ot hers present that I would not make out an incident repor

t beca use I believed the alleg ed incident to be a civil matter. Mr. MacD onald d i d n o t arg

ue with me when I said I would not make out an I ncident Report. This third-par

ty summary of the incident ref lects the true nature of MacD onald ’s call: an inappropria te resor

t to the police by a disgr

untled employ ee, not a g ood-fa ith act to stop a criminal violation and protec t the public. I n light of the contra

ry evidenc e, MacD onald fails to c rea te a g enuine issue of materia l fac t

as to whether he acte d in g ood faith. I n his April 2008 deposition, M ac Do n al d t es tified that he believed the notes to be “his persona l proper ty ,” but did not state that they contained any thing more than the UPS safe ty rules that he had handwr itten pur suant to U PS’s re quest. MacD onald went on to asser t that the office r told UPS to retu rn to MacD onald his persona l proper ty , but the office r’s aff idavit asser

ts the exact opposite: he told MacD onald that the notes belong ed to UPS, not to him, 3 and that it was a private matter that he would not g et involved in. MacD onald also testified that the

There is a g enuine issue of materia l fac t as to whe t her the notepad itself was g iven to 3 MacD onald by UPS or by his daug hter. Either way , it is undisputed that MacD onald was require d to handwrite the safe ty

rules and ha

nd in his work to UPS each day

.

- 26 -No. 09-2617

David Mac

Donald v. UPS office r told UPS that he would come back to ensure t h at they had complied, but this is flatly inconsistent with both the office r’s affidavit and the record, which reve als no further contac t with the pol ice. I n any case, ev en i f M ac Do n ald could cre ate a g enuine issue of m ater ial fac t as t o the office r’s viewof the situation, he fa ils to create one as to his own motivation. I n his brief, MacD onald arg ues that the notepad contained notes detailing UPS’s hara ssment, and that these notes wer e not returne d, Appellant’s Br

. at 21, but the rec ord indicates that this is pure fanta sy . W h en fi rst asked to descr ibe the notepad, MacD onald mentioned only the safe ty rules. L ater the same day , MacD onald testified that he knew he was not g iven copies of all of the pag es in the notepad beca

use the pad contained persona l notes that he did not rec eive, and when asked what those notes wer e about, he responded that they reg arde d work that he was doing in his baseme nt. Only when asked nearly five months later , in a later deposition, what the notepad had to do with his ag e-discr imination claim did MacD onald sug g est— a n d o n ly ju s t—

th a t th e n otes “we re written about things that they wer e doing to me.” Id

. at 4 4 0

. M ac Do n al d cannot “cr eate a disputed issue of materia l fac t where [hi s] earlier testimony on that issue . . . indicates that no such dispute e x ists.” Aerel, S.R.L., v. PCC Airfoils, L .L.C. , 448 F.3d 899, 907–08 ( 6th Cir. 2006). Acc ording ly , there i s insufficient evidence for a jury to conclude that, at t he ti me he made the ca ll to the police, MacD onald was acting under a g ood-fa ith belief that B owen ha d committed

a cr iminal violation. For this reason, Ma cDona ld is precluded f rom rec overing under the WP A. VI I For the fore g oing r easons, we AFF I RM the di strict court’s gr ant of summary judgme nt on MacD onald’s disability discrimination, ag e discrimination, and WP A claims, and REVERSE the - 27 -No. 09-2617

David Mac

Donald v. UPS district cou rt ’s g rant of summary judgme nt on MacD onald’s reta liation claim. We there fore REMAND for

further proce eding s in acc ordanc e with this opinion.

- 28 -