1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

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

File Name: 15a0084p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

CURTIS WHEAT, 

Plaintiff-Appellant, 

v. 

FIFTH THIRD BANK, 

Defendant-Appellee. 

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No. 13-4199 

Appeal from the United States District Court 

for the Southern District of Ohio at Cincinnati. 

No. 1:11-cv-00737—Susan J. Dlott, District Judge. 

Argued: November 21, 2014 

Decided and Filed: May 7, 2015 

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

_________________ 

COUNSEL 

ARGUED: Sandra J. Fortson, Brandywine, Maryland, for Appellant. Donyetta D. Bailey, 

RENDIGS, FRY, KIELY & DENNIS, Cincinnati, Ohio, for Appellee. ON BRIEF: Sandra J. 

Fortson, Brandywine, Maryland, for Appellant. Donyetta D. Bailey, RENDIGS, FRY, KIELY & 

DENNIS, Cincinnati, Ohio, for Appellee. 

_________________ 

OPINION

_________________ 

 MARTHA CRAIG DAUGHTREY, Circuit Judge. Following a workplace altercation 

between plaintiff Curtis Wheat and one of Wheat’s co-workers, defendant Fifth Third Bank 

terminated Wheat’s employment at the financial institution. Wheat then filed this lawsuit, 

asserting that his termination was motivated by racial animus, in violation of both Title VII of 

>
No. 13-4199 Wheat v. Fifth Third Bank Page 2

the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e–2000e-17, and the Ohio Civil 

Rights Act, Ohio Rev. Stat. § 4112.02(A). After a period of discovery, the bank filed a motion 

for summary judgment and, based on a report and recommendation submitted by a magistrate 

judge, the district court granted the motion and entered judgment for the bank. In doing so, the 

district court held that Wheat had failed to establish a necessary element of his prima facie case 

and that, in any event, he could not show that the bank’s asserted rationales for its employment 

decision were a pretext for invidious discrimination. On appeal, Wheat challenges both 

determinations. For the reasons discussed below, we conclude that Wheat has met his less-thanonerous burden of establishing a prima facie case of racial discrimination and that he has 

identified genuine disputes of material fact that preclude a finding that the bank’s stated reasons 

for firing Wheat were not pretextual. We therefore reverse the judgment of the district court and 

remand this matter for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Curtis Wheat, an African-American male, began working at the Madisonville (Ohio) 

branch of Fifth Third Bank as a sorter operator in 2001. By 2010, his job description had 

changed to that of a payment processor in the wholesale-lockbox department of the bank, 

although beginning in August 2009, Wheat also functioned as an “auditor” who “doublecheck[ed] [other] payment processor[s’] work.” 

On Friday, February 19, 2010, Wheat was scheduled to report to work for the second 

shift at 3:00 p.m. As was his custom, he arrived at work early, “[p]robably 10 til,” and stopped 

at the mail-packaging desk to speak with Lateascha (Tish) McNear before he clocked in. 

According to his deposition testimony, Wheat then observed Brad Hatfield, a Caucasian male 

payment processor, fumbling with his tray of work and grimacing. Wheat was responsible for 

checking Hatfield’s work, and when he noticed Hatfield’s apparent frustration, he presumed that 

Hatfield was upset with Wheat’s audit of what Hatfield had done. Wheat asked Hatfield whether 

there was a problem, and Hatfield responded, “What do you mean is there a problem?” At that 

point, Wheat retorted, “[Y]ou don’t answer a question with a question,” and, according to 

Wheat’s testimony, “it just took off from there,” with Hatfield claiming, seemingly 
No. 13-4199 Wheat v. Fifth Third Bank Page 3

incongruously, that he was not afraid of Wheat. Wheat then left the area, clocked in for work, 

and proceeded to his desk. 

Other witnesses to the verbal exchange offered similar accounts. Sami Badawi, the lead 

for the wholesale-lockbox payment processors, related that “Curtis asked, ‘What is your 

problem,’ to Brad. And Brad said, ‘I don’t have a problem.’ And everybody go to his desk.” 

Hatfield’s deposition testimony provided a more detailed recitation of the encounter between 

Wheat and him but still confirmed that the interaction ended without serious incident: 

I was pitching my mail. And I believe it was 3:00. Around that time. Curtis 

walked in and began talking to a mailroom lady. I believe her name was [Tish]. I 

don’t know what they were talking about, but he asked me if I had a problem. I 

was – I looked at him very stunned and shocked and said, “What?” And he said, 

“You heard me. Do you have a problem? I said, “What” probably three or four 

times. And then I said, “No.” 

And then he walked – he left [Tish] and he was going back to his desk. At that 

point he would have met me more face on. And he said, “Do you have a 

problem?” And I said, “No. Do you have a problem? The fact that you are 

asking me this implies to me that you have a problem. Do you have a problem?” 

And then he said, “Don’t answer me – don’t answer my question with a question. 

Do you have a problem?” And I said, “If you are trying to scare me, it’s not 

working.” He said, “Do you want to bet?” I said, “What’s that supposed to 

mean?” He said, “Do you want to bet, because I’m a betting man.” At that point 

I don’t know if he walked away or if I walked away, but he returned to his desk 

and I finished pitching the mail. 

Had that been the extent of the interaction between Wheat and Hatfield that afternoon, 

the parties would not be embroiled in this litigation. Unfortunately, shortly after Wheat returned 

to his desk, Badawi observed, “Brad come back to Curtis, to his desk.” Wheat claimed that 

Hatfield continued to ask whether he had a problem, to which the Wheat replied, “I didn’t know 

I had a problem.” When Hatfield then asked Wheat if he was “PMSing,” Wheat claimed that he 

responded, “I didn’t know I was a female.” At that point, Hatfield “started getting loud. So 

[Wheat] remember[ed] another individual said we should take it outside, off the floor. So 

[Wheat] was like, ‘Would you like to go outside so we don’t get other employees involved?’” 

Wheat recounted the ensuing events as follows during his deposition testimony: 

Well, we got out [into the hallway], and he was like, “Dude, what is your 

problem?” And I told him, “I didn’t know I had a problem.” And I was like, 
No. 13-4199 Wheat v. Fifth Third Bank Page 4

“Now, we’re out here. You should ask – we should try to figure out what is the 

problem.” And we was just going back and forth. And he was like – he made a 

threat that I didn’t know what he was capable of doing, and he – I told him, 

“You’re right. I don’t know what you are capable of doing.” And that’s when 

[supervisor Jason] Curfiss came out. Well, Mr. Curfiss was basically out there 

when we got out into the hallway. So Mr. Curfiss witnessed the whole event. So 

we was sitting there exchanging words. Then I was about to turn around and 

that’s when he assaulted me . . . . [Hatfield] like, took a – I don’t know if it was a 

punch or a swipe, but he touched me . . . . He, like, swatted me. Like, hit my arm 

. . . . I was ready to turn around and leave and that’s when he hit me like I was 

going to do something to him. 

Rather than retaliate physically, Wheat claimed, “I called him a little bitch. . . . Multiple times.” 

Hatfield admitted that he was indeed responsible for prolonging the initial confrontation 

between the two men. He also corroborated much of Wheat’s account of the ensuing exchange, 

claiming: 

When I went back to my desk I was not comfortable with the conversation. I 

went back to Curtis’[s] desk, stood a cubicle back, and said, “Are you going to tell 

me what that was all about, or should I chalk this up to your period?” He said, 

“Yeah, chalk it up to my period.” And then he said, “You are the one acting like 

a girl.” And I said, “Do you want to go to the conference room and talk this out 

like men?” And he said, “Sure. Let’s go to the conference room.” 

We proceeded up the aisle. He was very close on my back. I stopped and said, 

“Go ahead.” He said, “No. You go ahead.” So I walked on. When we got out 

into the hallway, we did not make it to the conference room. My back was cattycornered against the wall, he was in my face, and he started calling me a little 

bitch. “You are a bitch” – no, “little bitch.” 

At that time I believe Jason Curfiss came out. He asked us to separate and we 

both were not separating. He said, “We can clock out right now.” I said, “You 

are not capable” – I said, “You don’t know what I am capable of doing.” And he 

said, “Let’s clock out right now.” And I said, “I’ve got a wife and kid. You are 

not worth it.” And then he continued to call me a little bitch. And I said, “Jason, 

he can’t sit here and keep calling me a bitch.” And Curtis said, “I’m not calling 

you a bitch. I am calling you a little bitch.” And then he put his hand in my face 

and I swatted it out and said, “Don’t you touch me.” And at that time Jason was 

able to separate us. 

After separating Wheat and Hatfield, Curfiss enlisted the aid of his supervisor, Susan 

Lohstroh, as well as that of Michelle “Mia” Healy, Fifth Third’s employee relations consultant. 

Those three individuals then met first with plaintiff Wheat in the bank’s conference room in an 
No. 13-4199 Wheat v. Fifth Third Bank Page 5

effort to understand what had occurred during the confrontation with Hatfield. Healy took 

charge of the meeting and “was the main person conducting the investigation.” 

According to Wheat, most of the questions propounded by Healy were “irrelevant to the 

incident” and were based on assumptions made after hearing only Curfiss’s recounting of the 

confrontation. Discussing the meeting in his deposition, the plaintiff admitted to “being rude, 

because [he] was talking over [the] top of [Healy].” Moreover, he testified that he chose not to 

respond to the irrelevant questions and got frustrated because Healy never allowed him to tell his 

side of the story. In the end, Wheat became so exasperated that he threw his employeeidentification badge on the conference table. When asked whether he intended the act to signify 

his resignation from the bank, however, he retrieved his badge, believing that there was no 

reason to resign because he did not believe he had done anything wrong. In fact, when asked by 

Susan Lohstroh, “If [you] had to do it all over again, would [you]?” he responded, “Yes. Yes, I 

would.” 

Healy had a slightly different recollection of the questioning. Although she concurred 

that Wheat was loud, rude, and disruptive, she contended that it was he, not she, who would ask 

“questions that were irrelevant to this situation.” Healy also recalled that Wheat stated, “I’ll take 

care of it myself” and “Monday is going to be a big day,” but when asked what he meant by 

those statements, Wheat would not respond.1

 Eventually, Healy directed the plaintiff to clock 

out and go home and not report back to work until further investigations had been completed. 

When Wheat’s interrogators finished questioning him, they summoned Hatfield to the 

conference room and asked him to offer his account of the altercation with Wheat. Although he 

did so in a calm, cooperative manner, Hatfield also informed Healy, Lohstroh, and Curfiss, “I 

think me and Curtis both have had a bad day. I don’t want any problems with him with my job.” 

In accordance with company policy, Hatfield was also sent home for the remainder of the day, 

but in contrast to Wheat, Hatfield was told he could report to work on Monday. Healy later 

claimed that Wheat had been told to await permission to return to work because of the threat of 

 1

Although Healy understood Wheat’s comment about Monday being a big day to be a veiled threat of 

violence, Curfiss testified during his deposition that the plaintiff had told him on a few occasions “that he had his 

own documentation about how the department was run, he had been taking notes for a long time, had been saving it 

up for the right opportunity. . . . When I heard that, that’s what I thought Monday was about.”
No. 13-4199 Wheat v. Fifth Third Bank Page 6

workplace violence he posed, whereas Hatfield could report to work the following Monday 

because he did not pose a similar threat to anyone in the department. 

On that following Monday, February 22, Healy telephoned Wheat at his home and 

informed him that his employment with the bank had been terminated because “he had violated 

[the bank’s] workplace violence policy, that he had made a threat of physical violence, that he 

also violated [the bank’s] anti-harassment policy and that he was in violation of [the bank’s] core 

values.” Hatfield, on the other hand, was allowed to return to work and was given only a written 

disciplinary action, having been deemed a “nonaggressor.” In fact, Curfiss telephoned Hatfield 

at home to say, “You are absolutely fine. You are not fired. Curtis has been fired, and it has 

been a long time coming.” Moreover, the next day, Curfiss provided Hatfield with a “write-up” 

“that stated [Hatfield] did nothing wrong and the next time just go straight to management.” 

On March 30, 2010, approximately one month after his termination from Fifth Third, 

Wheat filed with the Ohio Civil Rights Commission a charge of discrimination. In that charge, 

the plaintiff asserted that he had been discriminated against on account of his race, in violation of 

Title VII of the Civil Rights Act of 1964, as amended. The allegation was investigated by the 

United States Equal Employment Opportunity Commission (EEOC), which “found reasonable 

cause to believe that violations of the statute(s) occurred with respect to some or all of the 

matters alleged in the charge but could not obtain a settlement with the Respondent that would 

provide relief for [the plaintiff].” Based on its findings, the EEOC issued Wheat a notice of his 

right to sue in federal district court. 

Upon receipt of Wheat’s administrative charge of racial discrimination, Healy conferred 

with the bank’s in-house legal counsel and “ma[d]e the decision to take a second look at the 

case.” In doing so, she spoke with other bank employees and re-interviewed Hatfield. 

According to Hatfield’s deposition testimony, during that second interview, he told Healy “the 

exact same story that [he] told all of them” at the first interview on February 19. In fact, he 

specifically claimed in his deposition that during his first interview with Healy, Lohstroh, and 

Curfiss, he told Healy that he had swatted Wheat’s hand away and that “[he] and Curtis had 

actually separated and then that [Hatfield was] the one that reinitiated the conversation at 

[Wheat’s] cubicle.” 
No. 13-4199 Wheat v. Fifth Third Bank Page 7

Nevertheless, despite Hatfield’s claim that his two recountings of the events of February 

19 were identical, Healy insisted that at the second interview, “Brad revealed further information 

that he did not share in the first investigation.” Specifically, Healy claimed: 

Brad told me that he was the one that went – him and Curtis had an initial 

confrontation, verbal confrontation. They parted ways. Brad went to the vending 

area, got a soda. He came back into the work area, saw Curtis chatting with some 

coworkers. He went up to Curtis and asked Curtis – asked Curtis, you know, it 

seems – said something to the effect that it seems to me you keep asking me if I 

have a problem with you. I seem to think you have a problem with me. The 

conversation ensued from there. Had Brad not done that, you know, that 

confrontation may have never happened. 

At the conclusion of the second investigation into Hatfield’s role in the events of February 19, 

Healy made the decision on May 14, 2010, to fire Hatfield as well. According to Healy’s 

deposition testimony, that decision was reached after “understanding Brad’s full involvement 

and the fact that Brad was not forthcoming and that he lied about his involvement, he too was an 

aggressor.”2

 

Having received his right-to-sue letter from the EEOC, Wheat filed suit against the bank 

in federal district court and alleged that his employment had been terminated on account of his 

race, in violation of the anti-discrimination provisions of Title VII and of the Ohio Civil Rights 

Act. The defendant bank eventually moved for summary judgment in its favor, and that motion 

was referred to a magistrate judge for initial evaluation. In a lengthy report and 

recommendation, the magistrate judge concluded that Wheat failed to establish all elements of 

his prima facie case because he could not establish that he was similarly situated to Hatfield, an 

individual outside the protected class who was alleged to have been treated more favorably by 

the defendant. Even if the plaintiff had made out his prima facie case, the magistrate judge 

concluded, summary judgment in favor of the defendant still would be proper because Wheat 

was unable to show that the legitimate, nondiscriminatory reasons offered by the bank for the 

plaintiff’s termination were a pretext for forbidden discrimination. Wheat filed objections to the 

magistrate judge’s report, placing the matter before the district judge. After reviewing the record 

 2

Interestingly, after learning of his termination from the bank, Hatfield also filed a charge with the EEOC 

based upon his belief that he “was fired just to cover Curtis’[s] law – lawsuit.” That charge was dismissed, however, 

as the bank convinced the EEOC that Hatfield’s termination “wasn’t about race. [It] was about inappropriate 

behavior.” 
No. 13-4199 Wheat v. Fifth Third Bank Page 8

and the magistrate judge’s recommendation, the district court adopted the report and 

recommendation and granted the defendant’s motion for summary judgment. From that ruling, 

the plaintiff now appeals. 

DISCUSSION

Standard of Review

We review de novo the grant of summary judgment by a district court. See Dodd v. 

Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment is appropriate Aif the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.@ Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists 

only when, assuming the truth of the non-moving party=s evidence and construing all inferences 

from that evidence in the light most favorable to the non-moving party, there is sufficient 

evidence for a trier of fact to find for that party. See Ciminillo v. Streicher, 434 F.3d 461, 464 

(6th Cir. 2006). A non-moving party cannot withstand summary judgment, however, by 

introduction of a Amere scintilla@ of evidence in its favor. Id. 

Title VII Claim3

Title VII provides that an employer may not “discharge any individual, or otherwise . . . 

discriminate against any individual with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). 

In order to establish a claim under Title VII, a plaintiff must present either direct or 

circumstantial evidence of discrimination on the part of the employer. Johnson v. Kroger Co., 

319 F.3d 858, 864-65 (6th Cir. 2003) (citation omitted). Because Wheat offers no direct 

evidence of racial discrimination on the part of Fifth Third Bank, he relies instead upon the 

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under 

that paradigm, a plaintiff first must establish a prima facie case of discrimination. Burdine, 

450 U.S. at 252-53 (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff does so, the 

 3

Claims brought pursuant to the Ohio Civil Rights Act are evaluated under the same framework as are 

claims brought under Title VII. See Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003). We will treat both 

Wheat’s state-law claim and his federal claim together.
No. 13-4199 Wheat v. Fifth Third Bank Page 9

burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory 

reason for the [adverse action.]” Id. (quoting McDonnell Douglas, 411 U.S. at 802). The 

plaintiff then is required to prove that the reasons proffered by the defendant were not its true 

reasons, but were mere pretexts for prohibited discrimination. Id. (citing McDonnell Douglas, 

411 U.S. at 804). 

Prima Facie Case

In order to establish a prima facie case of race discrimination, a plaintiff must show that: 

1) he is a member of a protected class; 2) he was qualified for the job and 

performed it satisfactorily; 3) despite his qualifications and performance, he 

suffered an adverse employment action; and 4) he was replaced by a person 

outside the protected class or was treated less favorably than a similarly 

situated individual outside of his protected class. 

Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014) (footnote and citation omitted). 

We have held consistently that a plaintiff’s burden of establishing a prima facie case is not an 

onerous one, see, e.g., Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) 

(citing Burdine, 450 U.S. at 253), and is “a burden easily met.” Wrenn v. Gould, 808 F.2d 493, 

500 (6th Cir. 1987) (citations omitted). 

In this appeal, the bank does not contest that Wheat, an African-American, was a member 

of a protected class, that he was qualified to serve as a payment processor, and that his 

termination from that position constituted an adverse employment action. Taking its cue from 

the report and recommendation of the magistrate judge, however, the defendant insists that 

Wheat is unable to establish a prima facie case of discrimination because he cannot point to 

another similarly situated individual in the employ of the bank who was treated more favorably 

than he was. 

In response to Wheat’s assertion that he and Brad Hatfield were similarly situated but 

nevertheless were subject to different treatment, the defendant offers three arguments. First, the 

bank contends that Wheat and Hatfield actually had different jobs at the bank—Hatfield was a 

payment processor, and Wheat was an auditor who was charged with the responsibility of 

checking the work of processors like Hatfield. Second, the defendant insists that Wheat and 
No. 13-4199 Wheat v. Fifth Third Bank Page 10

Hatfield were not true comparators because Wheat was the clear aggressor in the confrontation 

and Hatfield merely responded to the provocation. Third, the bank argues that the plaintiff and 

Hatfield were not similarly situated employees because Wheat displayed aggression and 

rudeness during his post-altercation interview with Mia Healy, while Hatfield was polite and 

accommodating when he was interrogated. 

When the evidence is viewed in the light most favorable to the non-moving party, 

however, the dissimilarity between the positions of the two men is not apparent. Despite 

evidence that Wheat devoted much of his work time to auditing functions prior to his discharge, 

the record also is clear that Jason Curfiss, Wheat’s immediate supervisor, described the 

plaintiff’s actual job title as “payment processor”—the same as Hatfield’s—not auditor. 

Furthermore, Wheat himself said that although he “was performing the auditor’s job functions,” 

he did not know whether taking on those responsibilities constituted a lateral move or a 

promotion. He was sure, though, that he received no change in pay when he began reviewing the 

work of other payment processors in August 2009. It thus appears that Wheat and Hatfield 

simply may have been performing different aspects of the same functional job. 

In Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998), we 

explained that a “plaintiff need not demonstrate an exact correlation with the employee receiving 

more favorable treatment” to be considered “similarly situated.” Instead, a plaintiff need show 

only that he and his comparator were “similar in all of the relevant aspects.” Id. (internal 

quotation marks and citation omitted). Granting the appropriate deference to the plaintiff’s 

evidence, it is clear that Wheat created at least a genuine dispute of fact over whether he and 

Hatfield performed sufficiently similar job functions to be considered similarly situated. More 

fundamentally, the identity of job responsibilities is not truly relevant here to the question of 

whether Wheat and Hatfield were similarly situated for Title VII purposes. Rather, because 

Wheat’s termination was spurred by a verbal, and potentially physical, altercation, the relevant 

comparison between Wheat and Hatfield should involve only the two men’s roles and actions in 

the contretemps. 

Addressing that issue, the bank also argues that the fourth prong of Wheat’s prima facie

case was not satisfied because Wheat, but not Hatfield, was the aggressor in the matter. Again, 
No. 13-4199 Wheat v. Fifth Third Bank Page 11

the very formulation of the defendant’s argument betrays the bank’s misunderstanding of basic 

summary-judgment jurisprudence. Even the most cursory of examinations of the evidence 

before the district court and this court reveals that a genuine factual dispute exists regarding 

Wheat’s status as the aggressor in the confrontation with Hatfield. In fact, the deposition 

testimony establishes that it was Hatfield, not Wheat, who pursued the altercation after the two 

men had separated initially and gone to their respective “corners.” Even Hatfield himself 

admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their 

initial encounter. Moreover, even if the defendant’s position is premised upon its belief that 

Wheat was the initial aggressor when the two men met in the hallway of the bank, the argument 

must fail. Although Hatfield claimed that the plaintiff “put his hand in [Hatfield’s] face,” Wheat 

stated during his deposition that he was turning around to extricate himself from the argument 

when Hatfield “assaulted” him by swatting him on his arm. Such divergent explanations of the 

unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant 

of summary judgment to the defendant at the prima-facie-case stage of the litigation.4

Fifth Third’s final argument in support of its position that Wheat did not prove that he 

and Hatfield were similarly situated involves the bank’s contention that the two men’s differing 

behavior when being interviewed by Healy after the altercation justified any disparate treatment 

that ensued. But in making this assertion, the bank again fails to view the evidence before the 

court in the light most favorable to Wheat. The plaintiff admits that he was rude and “talked 

over” Healy during his interview and that he did not respond to all of Healy’s questions. 

However, he also claims that he refused to answer certain questions propounded to him only 

because of his belief that they were not relevant to the investigation. The bank also takes his 

lack of response to questions regarding the meaning of his statements “Monday is going to be a 

big day” and “I’ll handle it myself” as indications of threats and aggression, sentiments that the 

 4

Fifth Third directs our attention to the decisions in Love v. Kent County Road Commission, 899 F.2d 14 

(6th Cir. 1990) (per curiam), and Boles v. Wal-Mart Stores, Inc., No. 2:07cv38-KS-MTP, 2008 WL 216528 (S.D. 

Miss. Jan. 23, 2008), to support its argument that Wheat was not similarly situated to Hatfield because Wheat was 

the initial aggressor. The facts in Love and Boles, however, are radically different from the situation presented in 

this appeal. In Love, it was the plaintiff who initially disengaged from a dispute with a co-worker but then returned 

to rekindle the argument. Thus, Love’s actions are more akin to those of Hatfield than those of Wheat, lending little 

support to Fifth Third’s argument on this point. Likewise, in Boles, the evidence established that the plaintiff first 

physically assaulted his co-worker before the co-worker threw a juice bottle at him in retaliation. In contrast, 

applying settled summary-judgment principles to the case now before us and viewing the evidence in the light most 

favorable to Wheat, we conclude that it was Hatfield who was the actual aggressor here. In any event, Wheat has 

demonstrated at least a genuine dispute of fact on the issue. 
No. 13-4199 Wheat v. Fifth Third Bank Page 12

defendant notes were not expressed by Hatfield when he was questioned. Nevertheless, in light 

of Curfiss’s testimony that he interpreted the comment about Monday being a big day as having 

a less ominous meaning than that attributed to it by Healy, and in light of the relative ambiguity 

of Wheat’s other comment, Wheat has met his less-than-onerous burden of establishing a prima 

facie case of race discrimination. 

Legitimate, Nondiscriminatory Reason for Termination 

In the report and recommendation adopted by the district court, the magistrate judge 

further concluded, “Even if . . . Plaintiff and Hatfield were similarly situated, and Plaintiff could 

establish a prima facie case of discrimination, Fifth Third[ ] has proven a legitimate, 

nondiscriminatory business purpose for its actions.” However, the burden on the defendant at 

this stage of the McDonnell Douglas analysis is not to prove the existence of a nondiscriminatory 

reason for the adverse employment action. Rather, as the Supreme Court has instructed, “This 

burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” Reeves 

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr. v. 

Hicks, 509 U.S. 502, 509 (1993)). 

Without question, Fifth Third did articulate legitimate, nondiscriminatory reasons for its 

termination of Wheat. Specifically, Healy referenced: the plaintiff’s refusal to cooperate during 

the interview; what Healy viewed as Wheat’s veiled threats toward Hatfield; and Healy’s own 

belief that, because Wheat was the initial aggressor in the altercation with Hatfield, he would 

resort to physical violence if he were to return to work. 

Pretextual Nature of Defendant’s Articulated Rationales

Given the bank’s presentation of justifications, the evidentiary burden shifted once again 

to the plaintiff to demonstrate at least a genuine dispute of fact over whether the bank’s proffered 

explanations for its adverse employment decision were pretexts for prohibited racial 

discrimination. See, e.g., Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014). 

“Pretext can be shown by offering evidence that (1) the employer’s stated reason had no basis in 

fact, (2) the stated reason did not actually motivate the employer, or (3) the stated reason was 
No. 13-4199 Wheat v. Fifth Third Bank Page 13

insufficient to warrant the adverse employment action.” Id. (citing Wexler v. White’s Fine 

Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en banc)).5

Our analysis of the pretextual nature of the proffered justifications for Fifth Third’s 

employment decision again must be overlaid with an understanding of the summary-judgment 

principles at play. In other words, at this preliminary stage of the litigation, Wheat need only 

identify genuine disputes of fact regarding the legitimacy of the defendant’s stated reasons in 

order to withstand a motion for summary judgment. We conclude that the plaintiff has met that 

burden. 

Taking the bank’s claimed nondiscriminatory reasons for firing Wheat in order, the 

defendant first contends that Wheat’s termination was justified by the plaintiff’s refusal to 

cooperate at his interview with Mia Healy. Viewing Wheat’s deposition testimony in its most 

favorable light, however, the plaintiff was reluctant to answer Healy’s questions for two 

underlying reasons: first, Wheat felt that most of the inquiries were not relevant to the 

investigation and, second, Healy never offered the plaintiff an opportunity to give his side of the 

story, an opportunity that she did extend to Brad Hatfield during the subsequent interview. If 

Wheat’s explanation is to be believed—as it must be at the summary-judgment stage—his 

alleged recalcitrance was an insufficient reason to warrant the challenged adverse action. 

Similarly insufficient to justify termination was Wheat’s utterance of the alleged veiled 

threat that he would “take care of it [him]self.” That comment is nothing if not ambiguous and, 

without a further explanation that Wheat did not provide, cannot necessarily be considered 

threatening at all. Fifth Third asserts, however, that the “I’ll take care of it myself” comment 

was not the only veiled threat made by Wheat; the defendant also argues that the plaintiff’s claim 

that “Monday is going to be a big day” should be considered “threatening.” The problem with 

 5

In its appellate brief, Fifth Third cites Hicks for the proposition that simply proving the defendant’s 

explanation false is not a sufficient evidentiary showing to impose liability upon the defendant; instead, the plaintiff 

also must establish that discrimination was the true reason for the employment decision. However, “[a]t the 

summary judgment stage, the issue is whether the plaintiff has produced evidence from which a jury could 

reasonably doubt the employer’s explanation. If so, [his] prima facie case is sufficient to support an inference of 

discrimination at trial.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (emphasis added) (citing 

Hicks, 509 U.S. at 511). See also Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001) (“when the 

elements of prima facie case have been met, a plaintiff need not show both pretext and discriminatory intent 

(‘pretext plus’) (citing Reeves, 530 U.S. at 147)).
No. 13-4199 Wheat v. Fifth Third Bank Page 14

the defendant’s and the magistrate judge’s reliance on that statement to support termination is 

that Wheat vehemently denied ever making it. Again, at the summary-judgment stage of these 

proceedings, the court has no option but to credit the plaintiff’s version of the facts and, 

therefore, presume that the comment upon which the defendant purports to rely was never made. 

As a final justification for the termination decision, the defendant relies upon Healy’s 

concern that Wheat would resort to physical violence if he returned to work. That concern was 

fostered in large part by Healy’s belief that the plaintiff was the initial aggressor in the matter. 

Although Wheat first did ask Hatfield whether Hatfield had “a problem,” the facts are 

uncontroverted that Wheat’s question did not cause the ensuing altercation. Instead, the plaintiff 

retreated to his desk after that initial exchange, and no further interactions with Hatfield would 

have occurred had Hatfield not approached Wheat and accosted the plaintiff verbally. True, the 

plaintiff was actively involved in the later altercation with Hatfield. However, there is genuine 

doubt that the simple fact that Wheat engaged in a shouting match with Hatfield was the actual 

reason for the plaintiff’s termination because Hatfield, the other active participant in the 

argument who did use physical violence, was not terminated for almost three months after Wheat 

was fired. Healy insists that the differing treatment was not based upon Wheat’s race but rather 

upon the fact that she initially was not aware of Hatfield’s role in reigniting the argument. The 

record on appeal suggests otherwise. Hatfield himself claimed that he informed Healy on 

February 19 of the fact that he had approached Wheat after the two men had ended their initial 

conversation. Healy’s denial of her knowledge of that fact until shortly before Hatfield was 

terminated calls into question the truthfulness of all her deposition testimony, a question that is 

best resolved by a jury. Thus, in light of all the facts that Healy must be presumed to have 

known at the time of the decision to terminate Wheat’s employment, her concern over only 

Wheat’s potential for violence could not have motivated the defendant’s challenged conduct. 

A jury could reasonably conclude that each of the rationales proposed by the defendant 

for its decision to fire Wheat either had no basis in fact, did not actually motivate the defendant’s 

decision, or was insufficient to warrant the challenged conduct. Wheat thus has established 

doubt as to the legitimacy of the defendant’s explanations and raised the specter that those 

rationales were merely pretextual. 
No. 13-4199 Wheat v. Fifth Third Bank Page 15

CONCLUSION

The report and recommendation of the magistrate judge failed to accord the plaintiff the 

deference he was due in ruling on the bank’s motion for summary judgment, at which point all 

facts and the inferences from those facts must be viewed in the light most favorable to the nonmoving party. When the facts are so viewed in this case, it is clear that Wheat has raised genuine 

disputes of material fact that should be resolved by a jury after consideration of the parties’ 

sworn testimony. We therefore REVERSE the district court’s grant of summary judgment to the 

defendant and REMAND this matter for such further proceedings as are appropriate.