Michael Land v. Southern States Cooperative, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0361n.06
No. 17-6303
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL LAND,
Plaintiff-Appellant,
v.
SOUTHERN STATES COOPERATIVE, INC.
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
Before: BOGGS, SILER, and SUTTON, Circuit Judges.
SILER, Circuit Judge. In this employment-discrimination case, plaintiff Michael Land
challenges the district court’s decision to grant summary judgment in favor of his former employer,
Southern States Cooperative, Inc. Land challenges the district court ruling on two counts:
(1) disability discrimination and (2) retaliation. For the following reasons, we affirm the judgment
below.
Factual and Procedural History
In 2011, Southern States hired Land as an assistant manager for its retail store in Richmond,
Kentucky. Land worked in this same role, as an at-will employee, for approximately three years
prior to his termination on March 21, 2014. At that time, Land was fifty-eight years old. His job
performance record was mixed, with some poor evaluations noted as early as 2011.
The Richmond store sells goods and services from all aspects of Southern States’s business.
On several occasions, Land’s superiors asked him to spend less time in his office and more time

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on the store floor. However, Land believed he could “generate more money for the company as a
sales person than as a warehouse stock person.” Management discussed Land’s failure to maintain
the showroom, storefront, and outside lot areas to company standards. Land often clashed with
his district managers, describing one as “a bully” and calling another, Michael Hash, a
“micromanager.”
During a December 2013 meeting with approximately a dozen employees, Hash analogized
to a scene from the movie War Horse in which a group of horses attempted to pull an object up a
hill, and a struggling horse was shot and replaced with a different horse. Hash then said: “I’m not
saying we’re going to shoot you, but we’re going to make it to the top of the hill with or without
you.” Hash never expressly mentioned Land’s name, but Land felt that Hash made eye contact
with him. Land had seen the movie and perceived Hash’s comment as a threat because the horse
to which Hash referred was older.
In June 2013, Land missed a month of work as the result of a knee replacement surgery
and complications from that operation. Southern States granted Land’s request for leave under the
federal Family Medical Leave Act (“FMLA”). When Land returned to work on July 2, 2013, he
used a cane to walk and was subject to several months of restrictions on lifting and standing. For
his first month back at work, Land’s physician, Dr. Jeffrey Selby, restricted him to four hours of
work per day, with no lifting and no more than an hour of standing at a time. Nonetheless, Land
often stayed at the store for more than four hours, believing that customers needed his help. In
late July, Dr. Selby reduced Land’s restrictions and permitted him to work six-hour days for two
weeks and then eight-hour days with lifting restricted to twenty-five pounds and a two-hour limit
on standing. Occasionally Land ignored these restrictions, but he never informed his supervisors
that he was working in excess of his doctor’s orders. On October 23, 2013, Dr. Selby released him

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from all work restrictions, and Land did not request any further accommodations from human
resources. He once again lifted fifty-pound sacks of feed per his job description. Land suffered
from back and hip pain, yet he did not raise these concerns with his supervisors other than his store
manager.
Meanwhile, Land continued to receive some poor performance reviews. In a 2013
evaluation, his superiors observed that Land would benefit from “spending more time at the
counter and walking the sales floor” and that the housekeeping of the store needed to improve.
Land often chafed under directives from his managers. For example, when instructed to assist
with the opening of a garden center, Land adamantly disagreed, voicing his opinion that a garden
center was a bad business decision.
On January 31, 2014, Hash met with Land and outlined a forty-five day Performance
Improvement Plan (“PIP”). In the first paragraph of the PIP, Hash noted his concern about Land’s
“ability to grasp and grow in the position he was hired for.” The PIP reiterated Land’s job duties
and described ways in which Land could improve his work. In closing, Hash wrote,
Over the next 45 days I will be reviewing [Land]’s performance as
it related [sic] to the above responsibilities. What I’m looking for is
a level of understanding, follow thru, sense of urgency and
completion of duties as asked. If after 45 days [Land] doesn’t show
the needed improvement to continue in this position I will take
further disciplinary action up to and possibly including termination.
Land drafted lengthy written objections that he planned to submit to the Southern States
corporate office. One letter was addressed to Donna Garcia, a manager in the Southern States
human-resources department. Another substantively similar but shorter letter was addressed to
Anne Clingenpeel, a Southern States Vice President. After speaking with Garcia and conferring
with his store manager, Land agreed to sign the PIP and initially refrained from submitting his
letters to the corporate office. Nonetheless, on March 10, 2014, a week before the end of his 45-

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day PIP period, Land sent his letters to Garcia and Clingenpeel. In his letters, Land detailed his
dissatisfaction with his managers and his position, as well as the obstacles he believed prevented
him from improving under the PIP. Although Land complained of “discrimination” and a “hostile
work environment,” he did not specifically identify a protected class or activity as the basis for
this discrimination. However, Land articulated numerous grievances with Southern States—
including his belief that the district manager “is set on my termination,” citing Hash’s war horse
analogy as an example of alleged harassment. Upon receiving Land’s letter, Garcia sent it to Hash.
Eleven days later, on March 21, 2014, Hash personally fired Land.
Land filed a charge with the EEOC, alleging employment discrimination and retaliation
based on age and disability under the Americans with Disabilities Act (“ADA”) and the Age
Discrimination in Employment Act (“ADEA”). The EEOC found no violation and issued Land a
right-to-sue letter. Land filed an action in state court, later removed to federal court. In his
complaint, Land raised claims of disability discrimination under the ADA and the Kentucky Civil
Rights Act (“KCRA”); age discrimination under the ADEA and KCRA; retaliation for being a
member of a protected class with respect to disability, age, and Title VII and/or his use of FMLA
leave and/or his requests for reasonable accommodations under the ADA, ADEA, and KCRA;
denial of requests for reasonable accommodations and subjection to a hostile work environment in
violation of the ADA and KCRA; and breach of an employment contract. However, on appeal,
Land abandoned all claims except for the disability discrimination and retaliation claims.
The district court granted Southern States’s motion for summary judgment, finding
insufficient evidence to support Land’s prima facie disability-discrimination and retaliation
claims. Specifically, the district court held that Land could not establish a prima facie case of
disability discrimination because, “as a matter of law, he was not disabled at the time of his

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discharge and, to the extent that Land was disabled at that time, Southern States did not have
knowledge of any disability.” Moreover, the district court found that the reason Southern States
articulated for firing Land—poor job performance and conflicts with upper management—
constituted a “reasonable and legitimate business decision” and, therefore, was not mere pretext.
On the retaliation claim, the district court rejected Land’s assertion that he was fired in
response to taking FMLA leave for his knee surgery and seeking accommodation for his post-
surgical issues. Nearly five months had passed between Land’s unrestricted return to work and
his termination. Thus, the district court held that Land’s knee surgery was too distant in time from
his termination to constitute protected activity. The district court also summarily dismissed Land’s
retaliation claim with respect to his letters to corporate headquarters. “If anything, he wrote a letter
on March 10, 2014, asserting that he was the subject of unspecified ‘discrimination,’ but the record
evidence demonstrates that the decisionmakers were already planning to terminate his
employment.”
Discussion
We review a district court’s grant of summary judgment de novo. Donald v. Sybra, Inc.,
667 F.3d 757, 760 (6th Cir. 2012). Disability-discrimination claims under the KCRA are analyzed
in the same manner as disability-discrimination claims brought under federal law. Bryson v. Regis
Corp., 498 F.3d 561, 574 (6th Cir. 2007). Likewise, retaliation claims under the KCRA are
evaluated under the same standard as this court uses to evaluate federal Title VII claims. Montell
v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014). Both federal and state claims
are subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).

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I. Disability Discrimination
With respect to his claim of disability discrimination, Land argues that his supervisors
“wanted to run [him] off because they regarded him as disabled.” However, Land failed to show
he was disabled at the time of his cited adverse employment action, his termination. Further, even
assuming Land had presented a prima facie case of disability discrimination, Land’s poor job
performance and his personality conflicts with upper management constituted a legitimate,
nondiscriminatory reason for the termination.
a. No Prima Facie Case of Disability Discrimination
The ADA provides that it is unlawful for an employer to “discriminate against a qualified
individual on the basis of disability in regard to . . . discharge of employees . . . and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Land’s last known disability
accommodation ended on October 23, 2013, when he was released to work without restrictions.
The record contains no other evidence of restrictions or accommodation requests after that date.
Nearly five months passed between Land’s unrestricted release to work and his discharge. We
have held that only a close proximity in time, less than three months, will allow an inference of
discriminatory treatment under the FMLA. See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274,
283 (6th Cir. 2012).
Moreover, no reasonable juror could conclude that Southern States knew or should have
known that Land was still disabled at the time of his termination in March 2014. Land only told
store manager Rick Winn, his direct supervisor, of his continued knee, hip, and lower back pain.
Yet, Winn was not a decision-maker and played no role in the termination process. See E.E.O.C.
v. Ford Motor Co., 782 F.3d 753, 768 (6th Cir. 2015) (en banc) (“Actions by nondecisionmakers
cannot alone prove pretext. . . . Neither can decisionmakers’ statements or actions outside of the

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decisionmaking process.”). Here, there was no evidence that anyone involved in the termination
decision—district manager Hash, human resources manager Garcia, or the regional manager—had
any information regarding Land’s possible back surgery or any alleged requests for
accommodation that Land made with respect to his back and hip. Consequently, Land did not
establish that a decision-maker knew of his alleged disability, and the district court did not err
when it granted summary judgment for Southern States on Land’s claim of disability
discrimination.
b. No Evidence of Pretext
Even if Land had somehow presented a prima facie case of disability discrimination, the
legitimate nondiscriminatory reason offered by Southern States was not pretext. If a plaintiff
succeeds in presenting a prima facie case of discrimination, the employer must proffer a legitimate,
nondiscriminatory reason for its actions. Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th
Cir. 2008) (citing E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997)). If the
employer makes this showing, the burden then shifts to the plaintiff to demonstrate by a
preponderance of evidence that the reason given by the employer was pretextual. Id. (citing Avery
Dennison, 104 F.3d at 862).
Here, Southern States discharged Land for poor job performance. Although Land
disagreed with the negative assessments of his performance, focusing instead on positive
comments from non-decision-makers such as his direct supervisor, “the law does not require
employers to make perfect decisions, nor forbid them from making decisions that others may
disagree with. Rather, employers may not hire, fire, or promote for impermissible, discriminatory
reasons.” Browning v. Dep’t of Army, 436 F.3d 692, 698 (6th Cir. 2006) (quoting Hartsel v.
Keys, 87 F.3d 795, 801 (6th Cir. 1996)).

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A mere conflict in personality and managerial style is a valid reason for discharge by an
employer. See Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir. 1982) (holding
a subjective personality conflict is a legitimate, nondiscriminatory reason for termination).
The district court correctly held that Land failed to demonstrate pretext. Southern States
articulated a legitimate, nondiscriminatory reason for Land’s termination—his poor job
performance and continuing conflicts with management—and Land cannot establish that this
reason was a mere pretext for disability discrimination.
II. Retaliation
Title VII prohibits employers from “discriminat[ing] against . . . [an employee]
. . . because [the employee] has opposed any . . . unlawful employment practice . . . or because [the
employee] has made a charge” that the employer has engaged in an unlawful employment practice.
42 U.S.C. § 2000e–3(a). To establish a prima facie case of retaliation, the plaintiff must show that
“(1) he . . . engaged in protected activity, (2) the employer knew of the exercise of the protected
right, (3) an adverse employment action was subsequently taken against the employee, and (4)
there was a causal connection between the protected activity and the adverse employment action.”
Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009) (alteration in original) (quoting
Niswander, 529 F.3d at 720).
Land argues that Southern States violated Title VII and retaliated against him by firing him
just eleven days after he formally complained, in writing, to the corporate office. Land claims he
“clearly complained of a hostile work environment” and was terminated in direct response to his
March 10 correspondence. However, as the district court correctly held, Land’s letter did not
establish a prima facie case of retaliation. The record contains no evidence that Land alleged

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specific discriminatory employment practices in his discussions with decision-makers or his letters
to Southern States.
Title VII does not protect an employee if his opposition is merely a “vague charge of
discrimination.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.
1989); see also Fox v. Eagle Distrib. Co., 510 F.3d 587, 592 (6th Cir. 2007) (asserting that
plaintiff’s vague charge that management was “out to get him” was insufficient to constitute
opposition to an unlawful employment practice). Here, the allegations of discrimination contained
in Land’s lengthy letters were vague, at best. The letters sharply criticized the PIP but contained
no assertion that Land was the subject of disability-based discrimination or that Southern States
had failed to reasonably accommodate his physical or mental needs. Land alleged unspecified
“discrimination,” but did not tie the alleged discrimination or hostile work environment to any
protected class or activity.
Additionally, Land failed to present a causal connection between his alleged protected
activity—the March 10 letter—and his termination. Southern States had already begun to consider
terminating Land several days before he submitted the letter. Moreover, Southern States
management documented its concerns with Land’s job performance nearly two months before his
termination when Hash, in his role as district manager, initiated the PIP on January 31, 2014. By
the time Land submitted his letter on March 10, more than a month had elapsed, and Land had
failed to demonstrate improvement under the PIP.
Even if a causal connection existed between Land’s letter and his termination, the
retaliation claim still fails for lack of proof of pretext. Southern States proffered a legitimate,
nondiscriminatory reason for terminating Land—namely, his poor job performance and his
conflicts with management. Land then failed to provide facts sufficient to lead a reasonable juror

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to conclude that Southern States’s proffered reason for his termination was pretext for retaliation.
Accordingly, the district court did not err when it granted summary judgment in favor of Southern
States on Land’s retaliation claim.
AFFIRMED.

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