NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0312n.06 No. 10-2441 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

REGI NAL D WORTHY, Plaintiff-Appellant,

v. MI CHI GA N BEL L TEL EPHONE COMPANY, dba AT& T Michig an, Def endant- Appellee , and MI CHAEL

L USTI G, et al., Def endants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and T HAPAR, District J udg e. * GRI FF I N, Circuit J udg e. Plaintiff Reg inald Worthy appea ls the di strict court’s gr ant of summary judgme nt in favor of defe ndant Michig an Be ll Telephone Company , d/b/a AT& T Michig an, (“Michig an Be ll”) on his claims of rac e discrim i n at i o n and reta liation in violation of the Elliott -L arse n Civil Rights Act (“EL CRA”), Mich. Comp. L aws § 37.2101, et seq . We affir m.

The Honora

ble Amul R

. Thapa

r, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

I

. This court reviews a distri ct court’s gr ant of summary judgme nt de novo. Parsons v. C ity of Pontiac , 5 3 3 F. 3 d 4 9 2 , 499 (6th Cir. 2008). Summary judgme nt is proper wher e “the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt

as a matter of law.” Fe d. R. Civ. P. 56(a)

. When deter mining whether the movant has met t his burden, this court views the evidenc e in the light m o s t fa v orable to the nonmoving party

. Smith W holesale Co., Inc. v. R.J. Rey nolds Tobacco Co. , 477 F.3d 854, 861 (6th Cir. 2007). Howeve r, the nonmoving party must prese nt more than a “mer e . . . scintilla” of e vidence to withstand a motion for summary

judgme nt. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 252 (1986). I I

. Worthy contends that the district court err ed in g ranting summary j u dg ment in favor of Michig an Be ll on his discrimination claim. Specifica lly , he asser ts that: (1) the district court err ed in ref using to consider the unsworn st atements attached to his respons e in opposition to summary judgme nt, and that t h o se unsworn statements established prete x t; (2) the district court err ed in finding that he fa iled to show prete x t ba sed solely on his deposition testi mony ; and (3) he was not require d to show prete x t beca use he prese nted direc t evidenc e of discrimination. We addre ss eac h of these a rg uments in turn. A. W o rthy first claims that the district court should have considere d five letters pu rp o rt ed l y written by AT& T employ ees that he attache d to his response in opposition to Michig an Be ll’s

- 2 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

motion for summary judgme nt. I n support of this claim, Worthy cites the rule that “[a] nonmoving party need n o t ‘produc e evidenc e in a form that would be admissible at trial in order to avoid
summary judgme nt,’” O-So Detroit, Inc. v. Home Ins. Co. , 973 F.2d 498, 505 (6th Cir. 1992) , and he contends that the letters attache d to his response could have been conver ted in t o ad m i ssible evidenc e beca

use some of them wer e purportedly written by individuals “listed in [hi s] witness list,” and the others we re wr i t t en by people “identified in [hi s] deposition.” We find this argument unpersua sive. Although a district court may consider some forms of hear say evidenc e in deciding a motion for summary judgme nt, Fe d. R. Civ. P. 56(c) , such evidenc e must still be admissible at trial. See Alexande r v. CareSource , 576 F.3d 551, 558 (6th Cir. 2009). An aff idavit used to support or oppose

a motion for summary judgme nt “is require d to be sworn to by the aff iant in fr o n t o f an ‘off

icer authorized to administer o at h s , ’” P et ers v. Lincoln Elec. Co. , 285 F.3d 456, 475 (6th Cir. 2002) (quoting Bla ck’s L aw Dictionary 54 (5th ed. 1979)), and must be made o n t h e af fi ant’s persona l knowledg e. Fe d. R. Civ. P. 56(c) (4). Alterna tively , under 28 U.S.C. § 1746, decla rations may take the place of aff

idavits, so long as those decla rations are made under penalty of perjury , cer tified as true and corr ect, dated, and signe d. See Pollock v. Pollock, 154 F.3d 601, 612 n.20 (6th Cir. 1998); Bonds v. Cox , 20 F.3d 697, 702 (6th Cir. 1994)

. Statements that are not sw orn in one of these two way s are not competent summ ary judgme nt evidenc e. See Ha r r i s v. J. B

. Robinson Jewe lers , 627 F.3d 235, 239 n.1 (6th Cir. 2010) (“[A] court may not consider unsworn statements when ruling on

- 3 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

a motion for summary judgme nt.”) (quoting Dole v. Elliott Travel & Tours, Inc. , 942 F.2d 962, 968-69 (6th Cir. 1991)). Worthy ’s proposed evidenc e satisfies neither Rule 56 nor 28 U.S.C. § 1746. He relies on the following : (1) a letter purportedly from “the union members of the L inwood Air Pressure cre w,” bear ing nine unidentified si g natur es , d at ed J anuar y 4, 2008, which is unsworn and not notarized; (2) a letter purportedly from Kenji L emon which is unsigne d, undated, unsworn, and not notarized; (3) a letter purportedly signe d by Erick Adams, which is undated, unsworn, and not notarized; (4) a letter purpor

tedly signe d by

Oliver B oy d, which is undated, unswor n, and not notarized; and (5) a letter pu rp ortedly signe d by Tee -Hua n Har vey , dated J une 23, 2008, which is unsworn and not notar ized. Be cause these letters are unsworn, they are not competent summary judgme nt evidenc e, and the district court proper ly ref used to consider them in ruling on Michig an Be ll’s motion for summary judgme nt. See H

arris , 627 F.3d at 239 n.1; see also Alex ander , 576 F.3d a t 561. Worthy next claims that the district court should have considere d the l et t ers beca use they

wer e “self- authe n ticated.” Citi ng Churches of Christ in Christ ian Union v. Evange lical Bene fit Trust , No. C2-07-CV-1186, 2009 WL 2146095 (S.D. Ohio J uly 15, 2009), he arg ues that “[w]here

a document is produc ed i n d iscovery , ‘there [i s] sufficie nt circ umstantial evidenc e to support its
aut h en t icity ’ at trial” and “ther e is no err or to admit as evidenc e documents that Def endants

- 4 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

themselves possess and produce d in response to Plaintiff’s reque st f or production of documents.” Id. at *5 (quoting Dennison v. Swaco Geolograph Co. , 9 4 1 F.2d 1416, 1423 (l0th Cir. 1991)). Howeve r, unlike in Churches of Chris t , Worthy , not Michig an Be ll, produce d the letters at issue here

. And Worthy has cited no support, and we have found none, for the idea that a litigant’s own production of documents during discovery rende rs the d o cuments authentica ted. Moreove r, reg ardle ss of whether a document is authentica ted for purposes of Fe dera l Rule of Evidence 901, it
must still be admissible. United States v. Jones , 107 F.3d 1147, 1159 (6th Cir. 1997) (citin g 5 J ack B. Weinstein et al., Weinstein’s Evidence ¶ 901(a) [02] , at 901–28 (1996) (“A document is not admissible s i m p l y b ec au s e it has been authentica ted. For example, if offe red to prove the truth of

asser tions made in it, the document will need to meet hear say require ments.”) (footnote omitted)). Worthy ’s authentica

tion arg ument is theref

ore w ithout merit. Finally , Worthy contends that the di strict court should have consider ed the letters because they wer e offe red to show Lustig’s discriminatory motive, rathe r than the truth of the matter asser ted, and thus wer e nonhear say . But the only way the letters could “show a pattern of behavior on the part of Lustig trea ting Afric an-A merica n employ ees in a manner that was inconsistent with that of Whit e employ ees,” as W orthy claims, is if the s u b stantive alleg ations contained in them wer e true – i.e., if Lu s tig allowed “anothe r white worke r . . . to work overtime whene ver he fee ls without any questions, while [he]

. . . gri l l [ ed ] the black worke rs about why we worke d so long when we’ re actua lly call ed out to work” or “provide [d] pure satisfac tion to the white employ ees as well as

acc ommodate[d] them and g [ave] them choice verse s working w it h e v e r y o n e equally .” Acc ording ly ,
- 5 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

the letters wer e inadmissible hear say , and Worthy ’s claim to the contra ry is frivolous. See Pack v. 1 Damon Corp. , 434 F.3d 810, 815 ( 6th Cir. 2006). B. Worthy next argues that the district court should have denied Michig an Be ll’s mot i o n for
summary judgme nt beca

use his deposition testimony was sufficie nt to establish that Michig an Be ll’s leg itimate, nondiscriminat o ry re ason for his termination was a prete x t for unlawful rac e discrimination. Specifica lly , he points to his statement that on November 29, 2005, he was having problems logg ing o n t o a computer to perf orm an assig ned task, and that when he went to talk to Lustig about it, L

ustig told him: “B oy , when I tell y ou to do something

. . . .” and “B oy , bring y our

ass back here .” Worthy asser ts that “[t] he term ‘boy ’

. . . is incre dibly insensitive and offe nsive” and that “ra cial overtone s are implicated when a Whit e supervisor calls an Afric an Americ an employ ee ‘boy .’” Thus, as he sees it, a rea sonable fac t-finder could reje ct Michig an Be ll’s leg itimate proff ere d

rea son for his termination and find that it was a mere prete x t for unlawful rac e discrimination. We do not ag ree . M i chig an courts “have used the prima fac ie test articula ted by the Suprem e C o u rt i n McD onnell Douglas Corp. v. Gree n [, 411 U.S. 792 (1973)], as a framework for evalua ting [EL CRA] claims.” Town v. Mi ch

. Bell Tel. Co. , 568 N.W.2d 64, 67-68 (Mich. 1997). To establish a prima fac ie case of discrimination, Worthy must prese nt evidenc e that (1) he belong s to a protec ted class,
Worthy also contends that the let t ers should have been considere d by the district court 1 beca use they wer e in the possession of Michig an Be ll and thus Michig an Be ll would not have been surprised by thei r consideration and/or admission. But whether Michig an Be ll would have been surprised is not the test. The test is whether the letters wer e competent evidenc e, and they wer e not. - 6 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al. (2) he suffe red an adv er s e employ ment action, (3) he was qualified for the position, and (4) his termination occur

red under circumstance s g ivi n g ri se t o an inferenc e of unlawful discrimination. Sniecinski v. Blue Cross & Blue Shiel d o f Mi ch. , 666 N.W.2d 186, 193 (Mich. 2003); see also McD onnell Douglas , 411 U.S. at 802. Once a plaintiff has prese nted a prima fac ie case , the burden then shifts to the defe ndant to articula te a leg itimate, nondiscriminatory rea son for the adver se employ ment action. Hazle v. Ford Motor Co. , 628 N.W.2d 51 5 , 5 2 1 -2 2 (M i ch. 2001). I f a d efe ndant produce s such evidenc e, the presumption is rebutted, and the burden shifts back to t h e plaintiff to show that the defe ndant’s rea s o n s wer e not the true rea sons, but a mere prete x t for discrimination. Id. at 522. The only issue here is prete x t. “Prete x t may be established ‘either direc tly by persua ding the [t rier of fac t] that a discriminatory rea son more likely motivated the employ er o r i n d irec tly by showing that the empl o y er ’s proff ere d explanation is unworthy of cre dence .” W hite v. Baxter Healthcare Corp. , 533 F.3d 381, 392 (6th Cir. 2008) (quoting Texas Dept. o f C mt y. Affairs v. Burdine , 450 U.S. 248, 256 (1981))

. The usual way to show prete x t is to d em o n s t ra t e t h at the employ er’ s stated rea son for the adver se employ ment action: (1) has no basis in fac t, (2) was not the
actua l rea son, or (3) is insufficient to explain the employ er’ s action. See Imwalle v. Reliance Med. Prods., Inc. , 515 F.3d 531, 545 (6th Cir. 2008). Howeve r, many “for m[ s] of circ umstantial evidenc e [can be] probative of intentional discrimination.” Ree ves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000). Ultimately , a plaintiff must produce sufficie nt evidenc e from which the jury
may rea sonably reje ct the employ er’ s explanation and find that the employ er’ s rea son was a prete x t

- 7 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

for unlawful discrimi n ati on. W arfield v. Lebanon Corr. Inst. , 181 F.3d 723, 730 (6th Cir.1999); Hazle , 628 N.W.2d at 522. Worthy cites sever al d i s t ri ct court case s in support of his argument that his deposition testimony was sufficie nt to establish prete x t. We find those case s inapposite. McCann v. Midland County Educational Service s Agency , No. 06-13150-BC, 2007 WL 2950591 (E.D. Mich. O ct. 10, 2007) is of

f targ et beca

use the lang uag e Worthy

selec ts from that ca se did not addre ss pretext, but

causation under M i ch i gan’s Whis tle-B lowers’ Protection Act. See Mich. Comp. L aws § 15.362 (1981). Barnes v. Foot Locker Retail, Inc. , 476 F. Supp. 2d 1210 (D. Kansa s 2007) is also no help
to Worthy beca

use the prete x t evidenc e in that case was plaintiff’s testimony that defe ndant, “in the context of g iving plaintiff his F inal Warning that ultimately resulted in his termination, stated that ‘they wanted s o m eone y oung er and more ag g ressive,’ ” id. at 1215, and Lustig’s alleg ed “boy ”
comments here are not simil arly close in time to Worthy ’s termination. L astly , Smith v. C.R. Bard, Inc. , 730 F. Supp. 2d 783 (M.D. Tenn. 2010), and Fuller v. Global Custom Dec orating , No. Civ.A. 3:2004-285, 2007 WL 44507 (W.D. Pa. J an. 5, 200 7 ), wh ich Worthy cites for the unrema rkable proposition that pretext can be shown throug h a plaintiff’ s deposition testimony , are fac tually and leg ally dissimi lar, and do not help Worthy show that his deposit i o n t estimony in this case does establish prete x t. More on point is the Eleventh Circuit’s decision in Ash v. Tyson Foods, Inc. , 190 F. App’x 924 (11th Cir. 2006) (“A sh I I ”). I n Ash v. T ys o n F o o d s , Inc. , 129 F. App’x 529 (11th Cir. 2005) (“A sh I ”), the Eleventh Circuit aff irmed a district court’s g rant of a defe ndant’s Fe dera l Rule of Civil

- 8 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

Procedur e 50(b) rene wed motion for judgme nt as a matter of law on a claim by two black plaintiffs alleg ing that their rac e wa s a m o t i v at ing fac tor in their failure to be promoted wher e their white supervisor alleg edly called them “boy .” Id. at 5 3 1

. T h e court held that “[w]hi le the use of ‘boy ’ when modified by a rac ial classifica tion like ‘blac k’ or ‘white’ is evidenc e of discriminatory intent, the us e of ‘boy ’ alone is not evidence of discrimination.” Id. at 533. The S upreme Court g rante d

cer tiorari and disag ree d. I t held that the word “boy ” used without modification c an be evidenc e of

rac ially discriminatory intent. Ash v. Tyson Foods, Inc. , 546 U.S. 454 (2006). The Court explained that, “[a]lt houg h it is true the disputed word will not alway s be evidenc e of rac ial animus, it does not follow that the term, standing alone, is alway s benig n . . . . [t ]he speake r’s meaning may depend on various fac tors including context, inflection, tone of voice, local custom, and historical usag e.” Id.
at 456. I t there fore rema

nded the case to the Eleventh Circuit to consider how the term was used in that case

. I n Ash II , the Eleventh Circuit once more aff irmed the district court. I t conclude d that “the use of ‘boy ’ by [t he black plaintiffs’ white supervisor] was not suffic i en t , eit her alone or with the other evidenc e, to pr ovide a basis for a jury rea sonably to f ind that [the employ er’ s] stated rea sons for not promoting the plaintiffs was rac ial discrimination.” Ash II , 190 F. App’x at 926. Acc ording
to the Eleventh Circuit, “[t] he usag es we re conver sational and as found by the district court wer e

non-ra cial in context” and “ther e is nothing in the rec ord about the rema ining fac tors [i dentified by the Supreme Court] to support an infere nce of rac ial animus in the use of the term ‘boy .’” Id. at 926. The court also noted that “eve n if somehow construed as rac ial,

. . . the comments wer e ambig uous

- 9 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.
stray rema

rks not uttered in the context of the decisions at issue and are not sufficie nt circ umstantial evidenc e of bias to provide a rea sonable basis for a finding of rac ial discrimination in the denial of the promotions.” Id. And it emphasized that “[t] he statement s we re remote in time to the employ ment dec i s i o n , totally unrela ted to the promotions at issue, and showed no indication of
g ener al ra cial bias in the de cision making proce ss at the plant or by [t he super

visor].” Id. The same rea soning applies here

. I n this case , Michig an Be l l ar t iculated a leg itimate, nondiscriminatory rea son for ending Worthy ’s employ ment: his failure to repor

t to his worksite on Fe bruar y 14, 2008, for at least two hours, in violation of the Company ’s Code of Business Conduct and Tec hnician Ex pectations. Worthy ’s testimony that Lustig called him a “boy ” is insufficient to show that Michig an Be ll’s leg itimate rea son was a prete x t for unlawful rac e discrimination. Lustig’s

use of the word “boy ,” like the sup er v i s o r’s use of the word in Ash II , was remote in time to the adver se employ

ment decision: Lustig alleg edly ref err ed to Worthy as a “boy ” in November 2005, and Worthy was not termi n ated until Marc h 2008. Moreove r, aside from the fac t that Worthy is black and Lustig is white – a fac t that the Supreme Court implicitl y found insufficient to g ive rac ial meaning to the word “boy” in Ash – there is no evidenc e, not the context, inflection, tone of voice, local custom, historical usag e, or any thing else, that sug g ests that Lustig’s use of the term ref lected

a rac ial animus. I ndeed, the only evidenc e in the rec ord is Worthy ’s response to Lustig’s use of the
term and that evidenc e points the other way . Acc ording ly , the district court did not err in finding that Worthy ’s deposition testimony was insufficient for a jury to rea sonably conc l u d e that Michig an

- 10 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al.

Be ll’s leg itimate, nondiscriminatory rea son for Worthy ’s termination was a prete x t for unlawful rac e discrimination. C. Worthy ’s final argument is that he did not need to show prete x t beca use Lustig’s use of the word “boy ” was direc t evidenc e of d i s cr i m i n ati on. “Dire ct evidenc e is evidenc e that proves the exis tence of a fac t without requiring any infere nces.” Rowan v. Lockhee d Martin Energy Sys., Inc. , 360 F.3d 544, 548 (6th Cir. 2004); Bla ck’s L aw Dictionary 577 (7th ed. 1999). “The evidenc e must establish not only that the plaintiff’s employ er was predisposed to discriminate on the basis of [race], but also that the employ er acte d on that predisposition.” Daugherty v. Sajar Plastics, Inc. , 544 F.3d 696, 707 (6th Cir. 2008) (quotation omitted). To deter mine if statements are “re levant” as direc t evidenc e of discrimination or are mere ly “stray rema rks,” courts g ener ally consider: (1) whether the

rema rks wer e made by the decisionmake r or by an ag ent uninvolved in the challeng ed decision; (2) whether the rema

rks wer e isolated or part of a pattern of biased comments; (3) whether the rema rks

wer e made close in time to the challeng ed decision; and (4) whether the re marks we re a

mbiguous

or clea rly ref lective of discriminatory bias. Dep’ t of Civil Rights ex rel. Burnside v. Fashion Bug of Detroit , 702 N.W.2d 154, 157 (Mich. 2005); Cooley v. Carmike Cinemas, Inc. , 25 F.3d 1325, 1330 (6th Cir. 1994). These fac tors weig h ag ainst Worthy here

. Worthy claims that this case is analog ous to DeBrow v. Century 21 Great Lakes, I

nc. , 620 N.W.2d 836 (Mich. 2001), wher e the Michig an Supreme Court found that a plaintiff had prese nted “dire ct evidenc e of unlawful age discrimination” beca use “[t] he plaintiff testified during his

- 11 -No. 10-2441

W orthy v. Mic h. Bell Telephone Co., et al. deposition

. . . [t hat] his superior told him that he was ‘g etting to o o l d fo r t h is shit.’” Id. at 838. Howeve r, the comment in Debrow clea rly ref lected discriminatory bias and was “alleg edly made in the context of the discussion in which plaintiff was informed [of the adver se employ ment action].” Id

. at 8 3 9

. Her e, in contra st, Lustig’s use of the word “boy ” was not clea rly ref lective of discriminatory

bias, see Ash , 546 U.S. at 456, espec ially in light of Worthy ’s response to it, and it

occur red more than two y ear s prior to Worthy ’s adver se employ ment decision. Cf. Rowan , 360 F.3d
at 548-49 (holding that an employ er’ s re m ar k s ab o u t the g ener al need to lower aver ag e ag e of workfor ce and stray comment that “t h e older people should g o, bring in some new blood” made
y ear s befor e employ ees’ terminations, wer e not direc t evidenc e of unlawful ag e bias). M o reove r, Lustig’s use of the word “boy ” was isolated and not part of a pattern of biased comments. Worthy has t here fore failed to prese nt direc t evidenc e showing t hat hi s employ er’ s alleg ed dis crimi n atory animus was ca

usally rela ted to his adverse employ ment decision. I I I

. For these re asons, we a ffirm the judg ment of the district cour t.

- 12 -