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

_________________

C URTIS W HEAT , Plaintiff-Appellant ,

v

.

F IFTH T HIRD B ANK , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 13-4199

Appeal from the United St ates 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, Mary land, for Appellant. Donyetta D. Bailey, RENDIGS, FRY, KIELY & DENNIS, Ci ncinnati, 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 Judg e. Following a workplace altercation between plaintiff Curtis Wheat and one of Wh eat’s co-workers, defe ndant Fifth Third Bank terminated Wheat’s employment at the financial institution. Wheat then filed this lawsuit, asserting that his termination was motivated by r acial 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 coul d not show that the bank’s assert ed rationales for its employment decision were a pretext for invidious discri mination. On appeal, Wheat challenges both
determinations. For the reasons discussed below, we conclude th at Wheat has met his less-thanonerous burden of establishing a prima facie case of racial discrimination and that he has identified genuine disputes of ma terial fact that preclude a findi ng that the bank’s stated reasons for firing Wheat were not pretextual. We therefor e reverse the judgment of the district court and remand this matter for further proceedings.

FACTUAL AND PROCED URAL BACKGROUND

Curtis Wheat, an African-American male, began working at the Madisonville (Ohio) branch of Fifth Third Bank as a sorter opera tor 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 sche duled to report to work for the second shift at 3:00 p.m. As was his custom, he a rrived at work early, “[p]robably 10 til,” and stopped at the mail-packaging desk to speak with Lat eascha (Tish) McNear be fore 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 t ook off from there,” with Hatfield claiming, seeminglyNo. 13-4199 Wheat v. Fifth Third Bank Page 3

incongruously, that he was not afraid of Wheat. Wheat then le ft the area, cloc ked in for work, and proceeded to his desk.
Other witnesses to the verbal exchange offe red 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 in teraction 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 s hocked 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 f ace on. And he said, “Do you have a problem?” And I said, “No. Do you ha ve 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 wa lked 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 litigat ion. 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 prob lem, to which the Wheat replied, “I didn’t know I had a problem.” When Hatfield then asked Wh eat 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 a nd forth. And he was like – he made a threat that I didn’t know wh at he was capable of doi ng, 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. We ll, 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 . . . . [Hat field] 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 leav e 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 respons ible 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 c ubicle 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 th en he said, “You ar e 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 c onference 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 bitc h” – 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 wh at 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 c ontinued to call me a little bitch. And I said, “Jason, he can’t sit here and keep calling me a b itch.” And Curtis said, “I’m not calling you a bitch. I am calling you a li ttle bitch.” And then he put his hand in my face and I swatted it out and said, “Don’t you t ouch me.” And at that time Jason was able to separate us.
After separating Wheat and Hatf ield, Curfiss enlisted the ai d of his supervisor, Susan Lohstroh, as well as that of Mich elle “Mia” Healy, Fifth Third’s employee relations consultant.
Those three individuals then met first with plaintiff Wheat in th e bank’s conference room in anNo. 13-4199 Wheat v. Fifth Third Bank Page 5

effort to understand what ha d occurred during the confrontation with Ha tfield. Healy took charge of the meeting and “was the ma in person conducting th e 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 Curfi ss’s recounting of the confrontation. Discussing the meeting in his de position, the plaintiff admitted to “being rude, because [he] was talking over [the] top of [Healy].” Moreover, he testifie d that he chose not to respond to the irrelevant questions and got frustr ated 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 re trieved 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 ag ain, would [you]?” he responded, “Yes. Yes, I
would.”
Healy had a slightly different recollection of the questioni ng. Although she concurred that Wheat was loud, rude, and disruptive, she cont ended that it was he, not she, who would ask “questions that were irrelevant to this situation.” Healy also reca lled that Wheat st ated, “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 inves tigations had been completed.
When Wheat’s interrogators finished questio ning him, they summoned Hatfield to the
conference room and asked him to offer his account of the altercation w ith 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 al so 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 depo sition that the plaintiff had told hi m 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 Whea t at his home and informed him that his employment with the bank had been terminated because “he had violated [the bank’s] workplace violence pol icy, that he had made a threat of physical violence, that he also violated [the bank’s] anti-ha rassment policy and that he was in violation of [the bank’s] core values.” Hatfield, on the other hand, was allowed to return to wo rk and was given only a written disciplinary action, having been deemed a “nonaggr essor.” In fact, Curfi ss telephoned Hatfield at home to say, “You are absolutely fine. You ar e not fired. Curtis has been fired, and it has been a long time coming.” Moreover, the next da y, Curfiss provided Hatfield with a “write-up” “that stated [Hatfield] did not hing wrong and the next time just go straight to management.”
On March 30, 2010, approximately one month af ter his termination from Fifth Third, Wheat filed with the Ohio Civil Rights Commissi on a charge of discrimination. In that charge, the plaintiff asserted that he had been discrimina ted against on account of his race, in violation of Title VII of the Civil Rights Act of 1964, as am ended. 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 obtai n 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 federa l district court.
Upon receipt of Wheat’s administrative charge of racial discrimination, Healy conferred with the bank’s in-house legal c ounsel and “ma[d]e the decision to take a second look at the case.” In doing so, she spoke with other ba nk employees and re-interviewed Hatfield. According to Hatfield’s deposi tion testimony, during that second in terview, he told Healy “the exact same story that [he] told all of them” at the first interview on Febr uary 19. In fact, he specifically claimed in his depos ition that during his first inte rview 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 hi s two recountings of the events of February 19 were identical, Healy insisted that at the sec ond interview, “Brad revealed further information
that he did not share in the first inve stigation.” Specifical ly, Healy claimed:

Brad told me that he was the one that went – him and Curtis had an initial confrontation, verbal confront ation. 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 af ter “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 th e anti-discrimination provisions of Titl e 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 in itial evaluation. In a lengthy report and recommendation, the magistrate judge concluded th at Wheat failed to establish all elements of
his prima facie case because he could not es tablish 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 le gitimate, nondiscriminatory reas ons offered by the bank for the plaintiff’s termination were a pretext for forbi dden discrimination. Wheat filed objections to the magistrate judge’s report, placing the matter before the district judg e. After review ing 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 Ha tfield’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, th e district court adopted the report and recommendation and granted the defendant’s moti on 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 A if the movant shows that there is no genuine dispute as to a ny 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 favorab le 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 canno t withstand summary judgment, however, by
introduction of a A mere scintilla @ of evidence in its favor. Id.

Title VII Claim 3

Title VII provides that an employer may not “d ischarge any individual, or otherwise . . . discriminate against any indivi dual with respect to his compensation, terms, conditions, or privileges of employment, because of such indivi dual’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 discrimi nation on the part of the employer. Johnson v. Kroger Co. , 319 F.3d 858, 864-65 (6th Cir. 2003) (citation om itted). 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 r easons 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 qualificatio ns and performance, he suffered an adverse employment action; and 4) he was replaced by a person outside the protected class or was tr eated 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 th at Wheat, an African-American, was a member of a protected class, that he was qualified to serve as a pa yment processor, and that his termination from that position constituted an a dverse 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 em ploy of the bank who was treated more favorably
than he was.
In response to Wheat’s assertion that he and Brad Hatfield were si milarly 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 andNo. 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 empl oyees because Wheat displayed aggression and rudeness during his post-altercat ion 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 tim e to auditing functions pr ior to his discharge, the record also is clear that Jason Curfiss, Wheat’s immediate supe rvisor, described the plaintiff’s actual job title as “payment proce ssor”—the same as Hatf ield’s—not auditor. Furthermore, Wheat himself said that although he “was performing the a uditor’s job functions,” he did not know whether taking on those respons ibilities constituted a lateral move or a promotion. He was sure, though, that he received no change in pa y 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 sa me 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 “simila rly 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 th e appropriate deference to the plaintiff’s evidence, it is clear that Wheat created at leas t a genuine dispute of f act over whether he and Hatfield performed sufficiently similar job functions to be considered similarly situated. More fundamentally, the identity of j ob responsibilities is not truly relevant here to the question of whether Wheat and Hatfield were similarly situat ed for Title VII purposes. Rather, because Wheat’s termination was spurred by a verbal, a nd potentially physical, altercation, the relevant comparison between Wheat and Hatfield should i nvolve only the two men’s roles and actions in the contretemps.
Addressing that issue, the bank also ar gues that the fourth prong of Wheat’s prima facie case was not satisfied because Wheat, but not Hatf ield, was the aggressor in the matter. Again,No. 13-4199 Wheat v. Fifth Third Bank Page 11

the very formulation of the de fendant’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 th is court reveals that a genuine factual dispute exists regarding Wheat’s status as the aggressor in the confront ation with Hatfield. In fact, the deposition testimony establishes that it was Hatfield, not Wh eat, who pursued the alte rcation after the two men had separated initially and gone to their respective “corne rs.” Even Hatfield himself admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their initial encounter. Moreover, ev en 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 plai ntiff “put his hand in [H atfield’s] face,” Wheat stated during his deposi tion that he was turning around to ex tricate himself from the argument when Hatfield “assaulted” him by swatting him on hi s 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 di d not prove that he and Hatfield were similarly situ ated involves the bank’s contenti on 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 ba nk 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 releva nt to the investigation. The bank also takes his lack of response to ques tions regarding the meaning of his st atements “Monday is going to be a big day” and “I’ll handle it myse lf” as indications of threats a nd 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 ak in 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 th rew 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 wh en 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 th e district court, the magistrate judge further concluded, “Even if . . . Plaintiff and Hatf ield were similarly situated, and Plaintiff could
establish a prima facie case of discrimination, Fifth Th ird[ ] has proven a legitimate, nondiscriminatory business purpose fo r its actions.” However, th e 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. Specificall y, Healy referenced: the plainti ff’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 disput e of fact over whether the bank’s proffered explanations for its adverse employment deci sion 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 offeri ng evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason did no t actually motivate the employer, or (3) the stated reason wasNo. 13-4199 Wheat v. Fifth Third Bank Page 13

insufficient to warrant the a dverse 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 th e proffered justificati ons 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 su mmary judgment. We conclude th at the plaintiff has met that
burden.
Taking the bank’s claimed nondiscriminatory r easons for firing Wheat in order, the
defendant first contends that Wheat’s terminat ion 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 relu ctant 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 pl aintiff an opportunity to give his side of the story, an opportunity that she did extend to Brad Hatfield during the subse quent interview. If Wheat’s explanation is to be believed—as it must be at the summary-judgment stage—his alleged recalcitrance was an insufficient re ason to warrant the ch allenged 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 th at 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 de fendant 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 explanat ion. 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 magistra te 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 creditthe 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 terminat ion decision, the defendant relies upon Healy’s
concern that Wheat would resort to physical violence if he return ed 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 whethe r Hatfield had “a probl em,” the facts are uncontroverted that Wheat’s question did not caus e 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 Whea t 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 activ e 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 treat ment was not based upon Wheat’s race but rather upon the fact that she initially wa s not aware of Hatfield’s role in reigniting the argument. The record on appeal suggests otherw ise. Hatfield himself claime d 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 H ealy must be presumed to have
known at the time of the decision to termin ate 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 pr oposed 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 ch allenged conduct. Whea t thus has established doubt as to the legitimacy of the defendant’s e xplanations 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 magistra te judge failed to acco rd the plaintiff the deference he was due in ruling on the bank’s mo tion 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 clea r that Wheat has raised genuine disputes of material fact that should be resolv ed by a jury after consid eration of the parties’ sworn testimony. We therefore REVERSE the distri ct court’s grant of su mmary judgment to the
defendant and REMAND this matter for such further proceedings as are appropriate.