NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0976n.06 No. 09-3349 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J I MMI E BU TL ER, Plaintiff-Appellant,

v. COOPER-STANDARD AUTO MOTI VE, I NC., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OHI O

BEFORE: SILER, ROGERS, and McK EAGU E, Circuit Judges. ROGERS, Ci rc u i t Judge. J immie Butler appea ls the district court’s g rant of summary judgme nt for Cooper-Standa rd Automotive on Butler ’s claims of rac e discrimination, hostile work environment, and reta liati o n i n violation of fede ral and Ohio law. The district court g rante d summary judgme nt for Cooper-Standa rd afte r deter

mining that Butler could not show that CooperStandard’s leg itimate rea sons for his termination wer e mere ly a prete x t for rac ial discrimination or reta liation and that Butler had not alleg ed discrimination perva sive enoug h to cre ate a hostile work environment. During Butler ’s initial appea l, Cooper-Standa rd filed for bankruptc y protec tion, resulting in an automatic stay

. On J une 28, 2011, the stay with reg ard to Cooper-Standa rd was lifted. Be cause Butler has not established that his termination was merely a pre text for discr imination or
reta liation, and he has not provided sufficient evidence of perva si v e d i s cr imination to support his hostil e wo rk environment claim, the district court proper ly g rante d Cooper-Standa rd’s summary judgme nt motion.J

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- 3 3 4 9 J immie Butler was employ ed as a mandrel opera tor at C ooper- Standard’s Bowling Gre en, Ohio, plant from J une 1996 until September 2007, when he wa s t erminated by the company . Mandre ls are rac ks of metal for ms used by

Cooper-Standa

rd to shape r

ubber hose s for use in auto parts. As a

mandre l opera tor, Butler ’s m ain j ob duties were to set up supplies used during a shift, load and unl o ad ra cked metal forms, t ranspor t materia ls to and from the autoclave (a larg e curing oven), and to chang e over rac ks of mandre ls and metal bars. R.38.2 at 2-3. Mandre l opera tors wer e require d to perf

orm various “indirec t labor” activities, such as stocking materia ls, obtaining baskets
to hold parts, washing baskets and the parts, and clea ring the are a wher e they unload the cure d parts. At Cooper-Standa

rd, mandre l ope rators are assig ned to w ork in sma ll gr oups called pools, usually consisting of two but sometimes three opera tors. R.47.2 at 57. The g ener al prac tice among mandre l opera tors is that the opera tor with the most seniority of the two or three pool me mbers dete rmines the pace of the work. During a single shift, employ ees ar e co n t ra ct u al ly require d to complete a minimum of eig hteen loads. Butler claims that Cooper-Standa rd has a “history of mistreating black employ ees.” R.65 at 19. As evidenc e, Butler provides examples of other Afric an Americ an empl oy ees who had previously worke d at Cooper-Standa rd. Mic h a e l B r o w

n le e , w ho worke d in the finishing depar tment, testified t hat i n 2006, Ba

rnhisel, Butler’s supervisor ag ainst whom he also b ro u gh t claims of race discrimination, approa ched Br ownlee and Sean Walker, another Afric an Americ an employ ee, to confr ont Walker about violating the safe t y g lasses rule. R.47.4 at 18. After Ba rnhisel stated that Br ownlee looked like he had something to say , Br ownlee asked why Ba rnhisel was even talking to him. R.47.4 at 18. When Brow nlee thre atene d to discuss any issues with manag ement, B arnhisel

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- 3 3 4 9 said, “F or what? So y ou can g o up there and play the rac e car d ag ain? ” R.47.4 at 31. Br ownlee also alleg ed that at some point during the discussion, Ba rnhisel told Br ownlee that he should “come back
to the mandre l depar

tment so we can do y ou like we did Roy .” R.47.4 at 21. Roy Wil liams was an Afric an Americ an employ ee at Cooper-Standa rd who Butler believes wa s fi red as a result of discrimination. Butler also alleg es that he was a victim of rac e discrimination by Ba rnhisel. Butler states that Ba rn h i sel’s prac tice of assig ning Butler to the most undesirable jobs and extra work becam e s o commonplace that those jobs wer e known as “J immie J obs.” Butler alleg es t hat o t h er employ ees did not want to work with him beca use they did not want to be assig ned extra work. Broc k Tong , another employ ee, testified that he coined the phrase t o re fe r t o work around the plant that Butler ref used to perf

orm. R.47.11 at 30. Butler filed a char g e of discrimination with the EEOC reg arding Ba rnhisel in Aug ust 2006, stating that “[t] he supervisor hara ss[ es] me ever [y ] chanc e he g ets. ” R.47.24 at 2 Butler filed a second char g e of discrimination with the EEOC afte r h e was called a ni**** by Tong

. After the incident, Tong was suspended for the day and wa s require d to watch a hara ssment vide o. R.47.11 at 15-18. I n Aug ust 2007, Butler and another employ ee named Uzelac wer e involved in the first of two incidents that Cooper-Standa rd relied upon to support Butler ’s termination. After Butler and Uzelac

wer e assig ned to work in the same pool, the pair had a dispute about h o w m an y loads they wer e g oing to f ire. R.37.5 at 15. Ac cording to Uzelac, the pair was one short of the require d minimum eig hteen loads, but Butler only wanted to do sevente en loads that day beca use of a company meeting

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- 3 3 4 9 R.47.13 at 11. The fo l l o wi n g d ay , Uzelac and Butler ag ain worke d in the same pool and wer e involved in another dispute over how many loads to fire. Id. at 12. Uzelac, who was senior to Butler , wanted to fire more than eig hteen loads but Uzelac claimed that Butler only wanted to do the minimum

. Id. at 13. As a result, the pair arg ued. Uzelac claimed that Butler cause d Uzelac to be burned by pushing hot mandr el bars into Uzelac ’s side of the pool, a nd Uzelac thre atene d to “jack slap” Butler if it happene d ag ain. Id. at 15. A meeting was held among Butler , Uzelac, Depa rtment Manag er Richard Meeks, Ba rnhisel (the supervisor at the time), and a union repr esenta tive. R.38.7
at 1-3. Following this meeting , both Butler and Uzelac wer e g iven an “informa tion only ” employ ee C orre ctive Action Notice in which they wer e told that they neede d to work well with other employ ees a

nd fire a s many

loads as possible. Id. at 2. I n September 2007, Butler was terminated afte r an incident that occur red while Butler was working in a pool with St. C lair and John Brose , who ar e both Cauca sian. Acc ording to St. C lair, he and Butler reque sted that Br ose slow down so that they could “stock up.” R.47.12 at 17. St. Clair then t es t i fi ed that Br ose ignor ed him, attempted to fire another load, and then went to g et a supervisor afte r “Ji mmie like g ot in his way o r s o m et h i n g. ” R.47.12 at 21. Br ose testified at his d ep o sition that he orig inally ag ree d to slow down, but then proce eded to fire a load an y wa y u n t i l J immie pressed the E- stop button, which preve nted the load from f iring . R.47.3 at 22. Following

an investiga

tion, Cooper-Standa

rd terminated Butler for interfe ring with the productivity of another worke r. R.38.13 at 2. The union cond u ct ed i t s own investiga tion and conclude d that CooperStandard had just c ause to te rminate Butler under the collective ba rg aining ag ree ment. R.38.14 a t 2.

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- 3 3 4 9 Butler filed hi s third and final char g e with the EEOC , claimi ng that he was terminated for calling a co-w orker a cry

baby and stating that an employ ee who had previously called him a ni**** had rec eived no disciplin e. Bu t ler’s complaint stated that Butler felt he had been terminated in violation of the Civil Rights Act of 1964. R.47.26 at 2. Butler then filed this law suit a g ainst both Ba rnhis el and Cooper-Standa rd, alleg ing rac e discrimination, reta liation, and hostile work environment unde r state a nd fede ral law . R.1.1. Cooper-Standa

rd and Ba rnhisel moved for summary judgme nt on all claims and the district
court g rante d the motion in Fe bruar y 2009. R.65 at 1. The district court deter mined that Butler had
not shown rac e discrimination throug h direc t evidenc e and that Butler could not show that CooperStandard’s stated rea son for terminating Butler was mere ly prete x t for discrimination. Id. at 16-22. The court also held t hat Butler h ad n o t p roduced sufficie nt evidenc e to allow a rea sonable jury to conclude that rac e was a fac tor in Butler ’s termination. Id. at 23. The district court g rante d summary judgme nt for Cooper-Standa rd and Ba

rnhisel on Butler’s hostile work environment claim afte r deter mining that beca

use Butler had alleg ed that he wa s s u b j ec t t o only one rac ial slur during his
t i m e at the plant he had not alleg ed sufficie nt rac ial hara ssment to support his claim. Id. at 2 5

. Reg arding Butler ’s reta liation claim, the district court identified seven adver se employ ment actions that might support his claim and found that Butler had established a prima fac ie case of reta liation. Id. at 27. Howeve r, the court held that Butler could not show that any of Cooper-Standa rd’s stated

rea sons for the adver se employ ment actions was mere ly prete x t. R.65 at 29. Butler filed this timely appea l.

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- 3 3 4 9 Whil e this appea l was pending , Cooper

- St andar d filed for Chapter 11 bankruptc y protec tion. Cooper-Standa

rd then filed notice with this court that an automatic stay protec ting Cooper-Standa rd

was in eff ect. The case moved forwa rd ag ainst Ba

rnhisel, and we aff

irmed the district court’s g rant of summary

judgme nt in favor of

Ba rnhisel. On J une 28, 2011, the automatic stay was lifted, a

nd Butler now pursues the appea l with respe ct to his rac e discrimination, hostile work environment, and
reta liation claims ag ainst Cooper-Standar d. Co o p e r - St andar d is entitled to summary judgme nt with resp e c t to B u tl e r ’ s r a c e d is c r im in a ti o n claim. Assuming, as the district court did, R.65 at 18, that Butler has established a prima fac ie case of rac e discrimination, Butler ’s claim still fails beca use Butler has not sufficie ntly shown that it was his rac e, and not his actions interfe ring with a co-w orker ’s productivity , that led to his termination. Cooper-Standard has proff ere d a leg itimate, non-discriminatory rea son for Butler ’s termination. Acc ording ly , the burden shifted back to Butler to show that this proff ere d rea son was only a prete x t. See, e.g. , Spengler v. W

orthington Cylinders , 615 F.3d 481, 492 (6th Cir. 2010); Risch v. Royal Oak Police De pt. , 581 F.3d 383, 391 ( 6th Cir. 2009). Butler makes four arg

uments, none of which raises a g e nuine issue of materia l fac t that shows
t h at C o oper- Standard’s explanation was prete x tual. First, Butler arg ues that Cooper-Standa rd’ s inconsistent rea sons for his termination prove that the company ’s proff ere d rea son did not actua lly motivate Cooper- S t an d ard’ s challeng ed conduct. Howeve r, in the case ag ainst Ba rnhisel, we previously deter

mined that, “[a]lt houg h Butler alleg es that Cooper-St an d ard g ave inconsistent explanations for his termination, Cooper-Standa rd has been consistent in main ta in in g th a t B u tl e r was terminated for interfe ring with the productivity of fellow employ ees. This was the rea son Cooper6J

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- 3 3 4 9 Standard articula ted in the termination notice, the motion for summary judgme nt, and on appea l.” Butler , 376 F. App’x at 493. Butler ’s arg uments do not sufficie ntly challeng e this deter mination as to war rant a differ ent conclusion here

. For instance, the written ex planation given at t h e m ee t i ng wher e Butler was formally terminated stated, “J. Butler admitted phy sically preve nting J ohn Br ose from firing another load.” R.47-16 at 45, and a letter from the plant manag er to Butler ’s union also stated that Butler ’s “beha

vior impact[ed] on productivity [and] was phy sical in nature .” R. 47-17 at 40. Cooper-Standa

rd’s proff

ere d rea son for his terminatio n has been consistent, and Butler ’s arg uments to the contrar

y do not show that the company had a disc riminatory

motive. Second, Butler claims that he was not g iven sufficie nt notice afte r the incident with Uzelac, and that his alleg ed conduct wa s “i n s u ff i cient to war

rant termination. This arg ument is not supported by the fac ts. Plant Manag er May nard’ s notes, taken contempora n eo u s l y d u ring his meeting with Butler afte r the incident with Uzelac, state that “I told J imm[ ie] that any further incidents would result in his being suspended or terminated at this point.” R.38-8 at 7. I n addition, though Butle r ar gues that the Correc tive Action Notice issued to both Uzelac and Butler was “informa tion only ,” and thus did not sufficien t l y warn Butler about t he possi bility of t ermination, the notice made clea

r that B utler wa s expected to improve his pe rfor mance and g et along with coworke rs. R.38-7 at 2. Third, Butler arg ues bot h that it was not a v i o lation of company policy to press the E-stop button and that he never phy sically preve nted another employ ee from firing another load, essentially arg uing that the company ’s proff ere d rea son is prete x tual bec ause it has no basis in fac t. These arg uments lack mer it. Butler c annot prove that hitting the E-stop button is not a violation; in fa ct,

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- 3 3 4 9 the cites that he provides, of Br ose’s deposition, id. at 21, and St. Clair’s deposition, R.47-12 at 17, 28-29, do not even discuss the E-stop button. Howeve r, even if Butler ’s asser ti o n s wer e corr ect, what matters is whether C o o per- Standard had a good faith belief that Butler had int erf ere d with a

c o - w o r k e r ’ s p r oductivity

. To prove prete x t, Butler must “put forth evidenc e which demonstrates that the employ er did not ‘honestly believe’ in the proffere d non-discriminatory rea son for i t s ad v er se employ ment action.” Braithwai te v. Tinken Co. , 258 F.3d 488, 494 (6th Cir. 2001). Her e Butler ’s union, afte r conducting its own investiga tion, deter mined t h at Butler had been “wa rned that any further incidents involving his preve nting or interfe ring with other employ ees perf orming their jobs could result in his t er m i n at i o n . . . . [and] the Grieva nce Commi ttee conclude d that the Company could demonstrate that Butler interfe red with J ohn Br ose’s perf ormanc e of his job.” R.38-14, para . 5-8. There fore , though the parties may dispute the underly ing fac ts, Butler has not sufficie ntly undermined Cooper-Standa rd’s g ood faith asser

tion that it fired Butler f

o r in te r f e r in g with the plant’s productivity

. Finally , Butler sug g ests that Cooper-Standa rd impermissibly

relied on a

“distorted re ality ” of Butler ’s employ

ment history , rathe r than the two instances of employ ee interfe renc e that CooperStandard alleg es led to Butler ’s termination. Appellant Reply Br

. (Supplemental Br iefi n g) at 9. Howeve r, even if Cooper-Standa rd did revie w Butler ’s “entire employ ment history ,” id. at 22, this does not mean that the two instances wer e not the motivating fac tors. I n fac t, the written explanation
states t h at t h e impetus for revie wing Butler ’s employ ment history is “this incident [t he Br ose incident] & the closene ss in time to the incident with Troy Uzelac.” Id

. Butler ’s argum en t i s unpersua sive.

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- 3 3 4 9 As with Butler ’s rac e discrimination claim, beca use Butler cannot rebut Cooper-Standa rd’s leg itimate proff

ere d rea son for his termination, Cooper-Standa rd was entitled to summary judgme nt with respe ct to Butler ’s reta liation claim. Butler offe rs no new arg uments for his reta liation claim,

asser ting that his prete x t arg uments for his rac e discrimination claim “appl[y ] with equal respe ct to [hi s] reta liation claims.” Appellant Reply Br

. (Supplemental Br iefing ) at 27. Therefo re , for the

rea sons alre ady discussed, th e d is trict court proper ly g rante d summary judgme nt to Cooper-Standa rd for B utler’s re taliation claim. Finally , Butler ’s hostile work environment claim lacks merit. Be cause Butler ’s initial brief does not addre ss why the district court err ed in g ranting Cooper-Stand ar d ’s summary judgme nt motion on Butler ’s hostile work environment claim, Butler waived t h i s cl ai m. Dillery v. City of Sandusky , 398 F.3d 562, 569 (6th Cir. 2005). Even if this wer e not the case , howeve r, the examples Butler provides did not sink to the level we descr ibed in In re Rodriguez , 487 F.3d 1001, 1010 (6th Cir. 2007) (quoting Harris v. Forklift Sys., Inc., 5 10 U.S. 17, 21 (1993)) : a “‘w orkplac e . . . perme ated with discriminatory intimi dation, ridicule, and insult, that is sufficie ntly sever e or perva sive to alter the condi t i o n s o f the victim’s employ ment and cre ate an abusive working environment.’” The rac ial slur made by Tong in his supplemental reply brief is the only evidenc e of rac ial hara ssment that Butler provides that happene d direc tly to him. I n that even t, CooperStandard rea cted promptly , suspending Tong for the rest of the day and providing him with hara ssm en t t ra i ning. Cooper-Standa rd exercised rea sonable car e to corr ect promptly the rac ial hara ssment, and this milit ates ag ainst Butler ’s hostile wo rk environment claim ag ainst CooperStandard. See Jack

son v. Quanex Corp. , 191 F.3d 647, 663 (6th Cir. 1999), Bu t l er ’s other

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- 3 3 4 9 examples—the “ra ce car d” comment his supervisor, Ba rnh i s el , alleg edly made, as well as the sug g estion that Wil liams, another Afric an Americ an employ ee, was fired as a “l esson” to others—while offe nsive, do not “cr ea t e an objectively hostile or abusive work environment—a n environment that a re as o n able person would find hostile or abusive.” Butler ’s hostile work environment c laim, theref ore, f ails. Butler ’s claims reg arding “Ji mmie J obs” is simil arly unpersua sive. First, it is unclea r from the rec ord what exactly “Ji mmie J obs” are ; while Butler arg ues that i t re fe rs to the extra work he

rec eived, Tong claims that coined the phrase to connote work that Butler refu s ed t o p er fo rm. R.47.11 at 30. Even if Butler ’s interpre tation is corr ect, howeve r, he has not sufficie ntly shown that this harassment wa s based on his ra ce. See W illiams v. CSX Transp. Co., Inc. , 643 F.3d 502, 511 (6th Cir. 2011). To prove that hara ssment was based on his rac e, Butler could either prese nt “dire ct evidenc e of the use of rac e-spe cific and derog atory terms” or “compa rative evidenc e about how the alleg ed hara sser trea

ted members of both rac es in a mix ed-r ace workplac e.” Id. The term “Ji mmie J obs” i s not “ra ce- specific ,” as othe rs wer e also re quired to complete extra work assig ned to them reg ardle ss of rac e. Butler , there fore , has not provided sufficie nt evidenc e to support a hostile work environment c laim. For the fore g oing rea sons, the district court’s g rant of Cooper-Standa rd’s summary judgme nt motion is aff

irmed.

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