Newson v. NYX, LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Darin Newson,
Plaintiff,
v.
NYX, LLC.,
Defendant.
________________________________/
Case No. 5:23-cv-13267
Judith E. Levy
United States District Judge
Mag. Judge Elizabeth A.
Stafford
OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [16]
Before the Court is Defendant NYX, LLC.’s (“NYX”) motion for
summary judgment. (ECF No. 16.) Plaintiff Darin Newson opposes the
motion. (ECF No. 20.) For the reasons set forth below, Defendant’s
motion for summary judgment is GRANTED.
I. 	Background
Plaintiff brought this suit against Defendant alleging race
discrimination in violation of 42 U.S.C. § 1981 and the Elliot-Larsen Civil
Rights Act (“ELCRA”); retaliation in violation of 42 U.S.C. § 1981, Title
VII of the Civil Rights Act of 1964 (“Title VII”), and ELCRA; and
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violations of the Fair Labor Standards Act (“FLSA”), the Michigan
Payment of Wages and Fringe Benefits Act (“PWFBA”),1 and the
Improved Workforce Opportunity Wage Act (“IWOWA”). (ECF No. 1.)
Plaintiff is an African-American man who began working for
Defendant as a forklift operator, or “hi-lo driver,” in September 2014.
(ECF No. 20, PageID.479.) Plaintiff’s employment with Defendant ended
in January 2016, but he was rehired in January 2019. (Id.) In April 2019,
Plaintiff complained to Human Resources about a perceived lack of
overtime opportunities. (ECF No. 16, PageID.260.)
On June 12, 2019, Plaintiff filed Michigan Department of Civil
Rights (“MDCR”) Charge #495487, alleging discrimination based on race.
(Id.) Plaintiff’s complaint to MDCR alleged that he was “constantly
denied” overtime and believed that “race was a factor.” (ECF No. 16-3,
PageID.317.) On April 14, 2022, Plaintiff filed MDCR Charge #614851,
alleging retaliation. (ECF No. 16, PageID.261.) In this second complaint,
1 Plaintiff’s Complaint alleges violations of the “Michigan Wages and Fair
Benefits Act.” (See ECF No. 1, ¶¶ 100–07.) There is no Michigan Wages and Fair
Benefits Act. Like Defendant, the Court presumes that Plaintiff intended to allege
violations of the PWFBA. (See ECF No. 16, PageID.276 (citing Mich. Comp. Laws §
408.481).) In any case, the question is irrelevant because Plaintiff subsequently
stipulated to dismissal of this count. (See ECF No. 20, PageID.488.)
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Plaintiff alleged that Defendant had “continued to deny [him] overtime
hours.” (ECF No. 16-15, PageID.355.) Plaintiff explained that he believed
Defendant had denied him overtime “in retaliation for filing the earlier
MDCR race discrimination complaint.” (Id.)
On December 22, 2023, Plaintiff brought this suit. Plaintiff’s
Complaint alleges that Defendant “repeatedly and continually denied
[him] the ability to earn overtime pay,” that “Black employees . . . are
routinely denied the ability to earn overtime,” and that “other non-Black
employees do earn overtime pay.” (ECF No. 1, ¶¶ 14–15, 17.) The
Complaint also alleges that, after Plaintiff filed a racial discrimination
complaint against Defendant, Defendant “began to deny [him] the ability
to earn overtime.” (Id. at ¶¶ 9–10.) Plaintiff asserts eight counts:
 Count I: retaliation under 42 U.S.C. § 1981;
 Count II: retaliation under Title VII;
 Count III: retaliation under ELCRA;
 Count IV: racial discrimination under 42 U.S.C. § 1981;
 Count V: racial discrimination under ELCRA;
 Count VI: violations of FLSA;
 Count VII: violations of PWFBA; and
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 Count VIII: violations of IWOWA.
(Id. at ¶¶ 30–117.)
On April 18, 2025, Defendant filed a motion for summary judgment.
(ECF No. 16.) Defendant argues, first, that Plaintiff’s Title VII claim
should be dismissed for failure to exhaust administrative remedies
because, at the time Defendant moved for summary judgment, Plaintiff
had not produced a right-to-sue letter from the United States Equal
Employment Opportunity Commission (“EEOC”). (Id. at PageID.265–
266.) Defendant argues, second, that Plaintiff cannot establish a prima
facie case of retaliation because he “cannot establish any adverse
employment action, and certainly not one causally connected to protected
activity.” (Id. at PageID.267.) Plaintiff “remains employed by NYX and
has worked many hours of overtime.” (Id. at PageID.271.) Defendant
argues, third, that Plaintiff cannot establish a prima facie case of
discrimination for similar reasons: He can show neither an adverse
employment action nor a comparator outside his protected class who was
treated more favorably. (Id. at PageID.270–271.) Finally, Defendant
argues that Plaintiff cannot prove violations of the FLSA, the PWFBA,
or the IWOWA. (Id. at PageID.273–280.)
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In his response, Plaintiff stipulates to the dismissal of his FLSA,
PWFBA, and IWOWA claims but argues that his discrimination and
retaliation claims should survive summary judgment. (ECF No. 20,
PageID.485–488.) Plaintiff also introduces a new theory of an adverse
employment action, alleging that he was temporarily laid off before other
employees with less seniority. (Id. at PageID.485, 487.) Plaintiff also
produces, apparently for the first time, a right-to-sue letter from the
Equal Employment Opportunity Commission. (ECF No. 20-2,
PageID.518.) In its reply, Defendant argues that Plaintiff is precluded,
at the summary judgment stage, from raising new claims and from
introducing evidence not produced during discovery. (ECF No. 21,
PageID.534–537.)
II. Legal Standard
Summary judgment is proper when “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). The Court may not
grant summary judgment if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “must view all evidence
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and draw all inferences in the light most favorable to the nonmoving
party.” Codrington v. Dolak, 142 F.4th 884, 890 (6th Cir. 2025) (citing
Anderson, 477 U.S. at 255).
However, it is “the actual proof,” and not “isolated, conclusory
allegations,” that the Court must view “in the light most favorable to the
nonmovant.” Baker v. Blackhawk Mining, LLC, 141 F.4th 760, 766 (6th
Cir. 2025) (citing Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th
Cir. 2008)). The “party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). The Court “is not
required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party's claim.”
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Perhaps most relevant here, “[t]he non-moving party must ‘do more
than simply show that there is some metaphysical doubt as to the
material facts.’” Baker v. City of Trenton, 936 F.3d 523, 529 (6th Cir.
2019) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). Rather, “[t]o survive summary judgment, the
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nonmoving party ‘must present significant probative evidence’ putting
the material facts in doubt.” Walden v. GE Int'l, Inc., 119 F.4th 1049,
1057 (6th Cir. 2024) (quoting Green Genie, Inc. v. City of Detroit, 63 F.4th
521, 526 (6th Cir. 2023)). “The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient.” Anderson, 477 U.S.
at 252. “The question is whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.’” Johnson v. Memphis
Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting
Anderson, 477 U.S. at 251–52).
III. Analysis
A. Retaliation Claims – Counts I, II, and III
Counts I, II, and III allege retaliation in violation of 42 U.S.C §
1981, Title VII, and ELCRA respectively. Defendant is entitled to
summary judgment on all three claims.
1. Count II and Administrative Exhaustion
Under Title VII, administrative “exhaustion ‘is a necessary
prerequisite to suit.’” Bangas v. Potter, 145 Fed. Appx. 139, 142 (6th Cir.
2005) (quoting Jones v. Truck Drivers Local Union No. 299, 748 F.2d
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1083, 1086 (6th Cir. 1984)). To properly exhaust administrative
remedies, a plaintiff must, first, file an administrative charge with the
EEOC (or a similar state agency) and, second, receive a “right-to-sue
letter” from the EEOC. Peeples v. City of Detroit, 891 F.3d 622, 630 (6th
Cir. 2018). Title VII then “requires that a party file a civil action within
ninety days of receiving a right-to-sue letter.” Truitt v. County of Wayne,
148 F.3d 644, 647 (6th Cir. 1998) (citing 42 U.S.C. § 2000e-5(f)(1)).
Plaintiff did not allege in his Complaint that he had exhausted
administrative remedies. (ECF No. 16, PageID.265.) Nor did he produce
a right-to-sue letter during discovery, despite repeated requests. (ECF
No. 21, PageID.536.) In his response to the motion for summary
judgment, however, Plaintiff produced a right-to-sue letter, which was
issued on September 26, 2023. (See ECF No. 20-2, PageID.518.) Because
Plaintiff filed his Complaint on December 22, 2023, he has technically
complied with the requirement that he file a civil action within ninety
days of receiving the right-to-sue letter.
As Defendant points out, however, at the summary judgment stage,
Fed. R. Civ. P. 56(c)(1)(A) requires that parties support their factual
positions with “materials in the record.” Relatedly, Fed. R. Civ. Pro.
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37(c)(1) states that when “a party fails to provide information . . . as
required by Rule 26(a) or (e), the party is not allowed to use that
information . . . to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless.”
Here, Plaintiff appears to have violated Rule 26(a) and (e).2 As a
document Plaintiff would use to support his claim, the right-to-sue letter
was subject to 26(a)’s mandatory and automatic disclosure requirements.
The letter was also subject to 26(e)’s ongoing disclosure requirements—
whenever it was located, it should have been disclosed in a timely
manner, particularly given Defendant’s interrogatory request that
Plaintiff “identify all communications” with the EEOC “regarding any
allegations in the Complaint.” (See ECF No. 21-1, PageID.540.)
2 Fed. R. Civ. P. 26(a) governs required disclosures and states that “a party
must . . . provide to the other parties . . . a copy . . . of all documents . . . that the
disclosing party has in its possession, custody, or control and may use to support its
claims.” Fed. R. Civ. P. 26(e) governs ongoing disclosure requirements and states
that:
A party who has made a disclosure under Rule 26(a) —or who has
responded to an interrogatory, request for production, or request for
admission—must supplement or correct its disclosure or response . . .
in a timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.
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“[E]xclusion of late or undisclosed evidence is the usual remedy for
noncompliance.” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015).
On the other hand, Plaintiff could avoid exclusion by showing that
omission of the right-to-sue letter “was either substantially justifiable or
harmless.” Roberts v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003).
Plaintiff has, however, “not attempted to make such a showing, or even
acknowledged that his untimely production of the right-to-sue letter after
the close of discovery might be problematic under the rules governing the
discovery process.” Jackson v. AFSCME Michigan Council 25, Loc. 1603,
No. 17-10671, 2019 WL 1399987, at *4 (E.D. Mich. Mar. 28, 2019).
Accordingly, the Court will not consider the right-to-sue letter that
Plaintiff produced for the first time in response to Defendant’s motion for
summary judgment. Plaintiff’s Title VII claim is therefore barred for lack
of evidence that Plaintiff exhausted his administrative remedies.3 Even
3 In Jackson, 2019 WL 1399987, Judge Battani dismissed Title VII claims on
very similar grounds. There, the plaintiff stated that he had received a right-to-sue
letter but failed to provide the letter in response to the defendants’ discovery requests.
Id. at *4. The plaintiff at last produced the right-to-sue letter in his response to the
defendants’ summary judgment motions. Id. Judge Battani noted that under Fed. R.
Civ. P. 37(c)(1), the plaintiff was not allowed to use the right-to-sue letter in support
of his opposition to the defendants’ motions for summary judgment, unless his failure
to produce the letter was substantially justified or harmless. Id. The plaintiff had not
made such a showing. Id. Accordingly, Judge Battani held that the plaintiff’s Title
VII claims were barred for lack of evidence that he exhausted his administrative
remedies. Id.
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if the right-to-sue letter were not excluded, however, Defendant would be
entitled to summary judgment on Plaintiff’s Title VII claim for another
reason: Plaintiff has failed to establish a prima facie case of retaliation.
2. Counts I, II, and III and a Prima Facie
Retaliation Claim
Retaliation claims under 42 U.S.C § 1981, Title VII, and ELCRA
are all analyzed under the same standard. Rogers v. Henry Ford Health
Sys., 897 F.3d 763, 775 (6th Cir. 2018). Where, as here, a plaintiff relies
on circumstantial evidence of retaliation, the McDonnell Douglass
burden-shifting framework applies.4 Laster v. City of Kalamazoo, 746
4 In his response to Defendant’s motion for summary judgment, Plaintiff
argues that he “has presented overwhelming direct and circumstantial evidence”
establishing his claims of retaliation and discrimination, as well as his wage and
overtime claims. (ECF No. 20, PageID.478.) This claim is puzzling for two reasons.
First, because Plaintiff stipulates to the dismissal of his wage and overtime claims in
the same brief. (See id. at PageID.488.) Second, because Plaintiff has presented no
direct evidence whatsoever of retaliation or discrimination.
“Direct evidence is evidence that proves the existence of a fact without
requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544,
548 (6th Cir. 2004). In the retaliation context, for example, direct evidence would
include “’blatant remarks’ revealing . . . retaliatory intent.” See Mansfield v. City of
Murfreesboro, 706 Fed. Appx. 231, 235 (6th Cir. 2017) (quoting Sharp v. Aker Plant
Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013)). Here, Plaintiff has, at best,
presented circumstantial evidence of retaliation and discrimination. Accordingly,
both Plaintiff’s retaliation and discrimination claims are analyzed under the
McDonnell Douglass burden-shifting framework.
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F.3d 714, 730 (2014). Under this framework, the “[p]laintiff bears the
initial burden to establish a prima facie case of retaliation.” Id. To
establish a prima facie retaliation claim, a plaintiff must establish that:
(1) he engaged in a protected activity;
(2) his exercise of such protected activity was known by the
defendant;
(3) he suffered an adverse employment action; and
(4) there was a causal connection between the protected
activity and the adverse employment action.
Rogers, 897 F.3d at 775.
If a plaintiff succeeds in establishing a prima facie case of
retaliation, the burden “shifts to the employer to articulate some
legitimate, nondiscriminatory reason for its actions.” Laster, 746 F.3d at
730 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)). If the
employer satisfies this burden, the burden shifts back to the plaintiff to
demonstrate that the purported legitimate reason “was a pretext
designed to mask retaliation.” Imwalle v. Reliance Med. Prods., 515 F.3d
531, 544 (6th Cir. 2008) (citing EEOC v. Avery Dennison Corp., 104 F.3d
858, 862 (6th Cir. 1997)).
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Here, Defendant argues that Plaintiff has failed in his initial
burden to establish a prima facie case of retaliation. Defendant does not
dispute that Plaintiff engaged in a protected activity and that his exercise
of such protected activity was known by Defendant. Defendant does
contend, however, that Plaintiff cannot establish any adverse
employment action, let alone one causally connected to a protected
activity. (ECF No. 16, PageID.267.) For the reasons set forth below, the
Court agrees.
a. Adverse Employment Action
“In the retaliation context, the term ‘adverse employment action’
. . . includes any conduct that would have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Wyatt v. Nissan
N. Am., Inc., 999 F.3d 400, 419 (6th Cir. 2021) (internal quotations
omitted).
In his response to Defendant’s motion for summary judgment,
Plaintiff presents two theories of adverse employment actions, alleging:
(1) that he was “laid off several times . . . before other employees in his
department that had less seniority,” and (2) that he was denied overtime.
(ECF No. 20, PageID.487.)
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As to the layoff theory, Defendant argues that Plaintiff “is barred
from including claims beyond those raised in the Complaint for the first
time at the summary judgment stage.” (ECF No. 21, PageID.534.) The
Court agrees.
“Parties who seek to raise new claims at the summary-judgment
stage must first move to amend their pleadings under Federal Rule of
Civil Procedure 15(a) before asserting the claims in summary-judgment
briefing.” Davis v. Echo Valley Condo. Ass'n, 945 F.3d 483, 496 (6th Cir.
2019). “By that point, ‘a plaintiff has conducted discovery and has had
the opportunity to amend the complaint and raise additional theories.’”
Id. (quoting West v. Wayne County, 672 F. App'x 535, 541 (6th Cir. 2016)).
If, instead, a plaintiff introduces a new, factually distinct claim in his
summary-judgment briefing, “it generally subjects a defendant to unfair
surprise, because the defendant has no opportunity to investigate the
claim during discovery.” Id. (internal quotations omitted).
In Desparois v. Perrysburg Exempted Vill. Sch. Dist., 455 Fed.
Appx. 659 (6th Cir. 2012), for example, the plaintiff sued the defendant
alleging violations of his right to due process. In response to the
defendant’s motion for summary judgment, the plaintiff introduced new
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theories as to how the defendant had violated his due process rights,
including failure to provide him with a police report. Id. at 664–65. The
Sixth Circuit noted that “the single fact upon which this allegation
rests—that [the plaintiff] did not receive a copy of the police report—was
not included anywhere in the complaint.” Id. at 665. “As a consequence,
the language that was actually in the complaint did not give [the
defendant] notice that it would have to defend against the claim that it
did not provide a police report to [the plaintiff].” Id.
Here, the circumstances are similar to Desparois. In response to
Defendant’s motion for summary judgment, Plaintiff has introduced a
new theory of the adverse employment action underlying his retaliation
and discrimination complaints. Plaintiff’s Complaint contains no
allegation that he was laid off before other employees with less seniority.5
5 The only possibly related allegation in Plaintiff’s Complaint are two
ambiguous references to termination. There is, notably, no mention of termination
in Plaintiff’s list of factual allegations. (See ECF No. 1, ¶¶ 7–29.) Rather, the two
references to termination appear in the paragraphs outlining Counts I and IV. (See
id. at ¶¶ 37, 70.) Both paragraphs state that “[a]s a direct and proximate result of
those actions . . . Plaintiff was unlawfully terminated.” (Id.) Because of the many
errors in the surrounding paragraphs, it is frankly unclear whether the references
to termination were intended at all. (See, e.g., id. at ¶ 32 (referring to the male
Plaintiff as “her” and referencing, for unclear reasons, “the First Amendment”); id.
at ¶ 39 (referring to the singular Plaintiff as plural); id. at ¶ 53 (referring to the
male Plaintiff as “her”); id. at ¶ 66 (referring to the male Plaintiff as “her”); id. at ¶
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(See ECF No. 1, ¶¶ 7–29 (alleging that Defendant “was not giivng [sic]
overtime” but making no mention of temporary layoffs).) Thus, as in
Desparois, the language that is actually in the Complaint did not give
Defendant notice that it would have to defend against this factually
distinct claim. Accordingly, Plaintiff was obligated to amend his
complaint to include the temporary layoff allegations, and the Court will
not consider them.
71 (referring to the singular Plaintiff as plural); id. at ¶ 79 (referring to the singular
Plaintiff as “Plaintiffs”); id. at ¶ 101 (referring to the singular Plaintiff as “they”);
id. at ¶ 109 (referring to the singular Plaintiff as “employees”).)
The Court finds that these two isolated and confusing references to
termination did not give Defendant notice that it would have to defend against the
factually distinct claim that Plaintiff was temporarily laid off before other
employees with less seniority. In this sense, too, the circumstances here are similar
to Desparois. There, the plaintiff argued that, while failure to provide him with a
police report was not explicitly included in his amended complaint, it “should be
understood as part of the failure to allow him ‘a sufficient opportunity to marshal
facts and evidence to counter the charges.’” Desparois, 455 Fed. Appx. At 665. The
Sixth Circuit rejected this argument, noting that it was clear that the defendant
“had no idea that the police report was a potential basis for [the plaintiff]’s due
process claim,” because the defendant made “no mention of the police report” in its
briefing. Id. Similarly, here it is clear that Defendant had no idea that temporary
layoffs were a potential basis for Plaintiff’s retaliation claim because Defendant
made no mention of temporary layoffs in its summary judgment briefing. Instead,
Defendant noted briefly that Plaintiff had not been terminated and focused on the
overtime theory that was apparent from Plaintiff’s complaint. (See ECF No. 16,
PageID.267–270.)
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On the other hand, Plaintiff’s second theory of an adverse
employment action—that he was denied overtime—is clearly contained
in his Complaint. (See, e.g., ECF No. 1, ¶ 10.) Defendant argues, however,
that Plaintiff has failed to demonstrate a triable issue of material fact
regarding the denial of overtime. (See ECF No. 21, PageID.532–534.)
Specifically, Defendant argues that the record shows Plaintiff worked
overtime throughout his employment—including after his discrimination
complaint—and that the claim that others worked more overtime is
purely speculative. (Id.) According to Defendant, Plaintiff “provides no
record evidence to show he was denied opportunities for overtime.” (Id.
at PageID.534.)
It is true that the record shows Plaintiff worked overtime
throughout his employment. (See, e.g., ECF Nos. 16-5, 16-6, 16-7, 16-8,
16-9, 16-10, 16-14 (earnings summaries and pay records).) It is also true
that Plaintiff has provided little record evidence to show that he was
denied opportunities for additional overtime. It is not true, however, that
Plaintiff has provided no record evidence to show that he was denied
opportunities for additional overtime. In his response to Defendant’s
motion for summary judgment, Plaintiff cites to one piece of evidence on
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the record: his own deposition testimony. (See, e.g., ECF No. 20,
PageID.479–480.) The Sixth Circuit has repeatedly held that a plaintiff’s
testimony may constitute sufficient evidence to defeat a defendant’s
motion for summary judgment. See, e.g., Moran v. Al Basit LLC, 788 F.3d
201, 206 (6th Cir. 2015).
To create a genuine dispute of material fact, however, a plaintiff’s
testimony must include “specific facts,” and not merely “general
allegations” or “conclusory statements.” Viet v. Le, 951 F.3d 818, 823 (6th
Cir. 2020). Thus, for example, “[a] discrimination plaintiff's generic
testimony that she was qualified for a position . . . does not suffice to
withstand summary judgment on that qualification issue without specific
facts supporting this general testimony.” Id. (citing Alexander v.
CareSource, 576 F.3d 551, 560 (6th Cir. 2009)).
The Court finds the Sixth Circuit’s FLSA case law particularly
instructive. In the FLSA context, to survive summary judgment, a
plaintiff “must present [enough evidence] to create a jury question over
whether they worked overtime.” Id. A plaintiff’s testimony alone may
constitute enough evidence to create a jury question. In Moran, for
example, a plaintiff’s testimony was sufficient to create a genuine dispute
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of material fact over whether he had worked overtime because the
plaintiff “coherently describe[d] his weekly work schedule, including
typical daily start and end times which he used to estimate a standard
work week of sixty-five to sixty-eight hours.” 788 F.3d at 205.
On the other hand, the Sixth Circuit has also held that a plaintiff’s
testimony alone does not create a genuine dispute of material fact over
whether he worked overtime where that testimony is “too ‘equivocal,
conclusory, and lacking in relevant detail.’” Viet, 951 F.3d at 824. In Viet,
for example, a plaintiff’s “bare assertion” that he usually worked sixty
hours per week was “too conclusory to create a jury question over whether
[he] worked overtime in any given week between April 2014 and
September 2016.” Id. Unlike the plaintiff in Moran, the plaintiff in Viet
“did not fill in his general 60-hour estimate with specific facts about his
daily schedule.” Id. The Sixth Circuit concluded that the plaintiff could
not “simply turn a complaint's conclusory allegations about overtime
work into an affidavit's conclusory testimony about overtime work and
expect to get a jury trial under Rule 56.” Id. at 826.
Here, of course, Plaintiff must present enough evidence to create a
jury question over whether he was denied available overtime, rather than
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whether he worked it. Nevertheless, the line drawn by Moran and Viet—
between specific facts and general allegations—is helpful. The Court
finds that Plaintiff’s deposition testimony is much closer to the conclusory
statements in Viet than to the specific factual allegations in Moran.
Plaintiff testified, in general terms, that “[t]hey never asked me to work
the weekend,” “I didn’t get no overtime on the weekend for over four
years,” and “[t]hey had stopped letting me work overtime.” (ECF No. 20-
1, PageID.510, 511, 512.) Plaintiff’s bare assertions do not contain the
sort of specific factual allegations that would permit a reasonable
factfinder to find that there was additional overtime available in any
given week and that Plaintiff was denied it.
As in Viet, Plaintiff cannot simply turn his Complaint’s conclusory
allegations into conclusory testimony and expect to get a jury trial.
Plaintiff has failed to create a genuine question of material fact over
whether he suffered an adverse employment action. Accordingly,
Plaintiff has failed to establish a prima facie case of retaliation.
b. Causal Connection
Even if Plaintiff could show an adverse employment action,
Plaintiff has failed to present evidence that would permit a rational
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factfinder to conclude there was any causal connection between that
adverse employment action and his protected activity.
Plaintiff argues that a “tight temporal connection” supports an
inference that the alleged overtime denials were causally connected to
his MDCR complaint. (See ECF No. 20, PageID.481.) It is true that
“[w]here an adverse employment action occurs very close in time after an
employer learns of a protected activity, such temporal proximity between
the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.”
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008).
Generally, a two- to three-month time lapse between a protected activity
and an adverse employment action has been found to constitute evidence
of a causal connection. See Rogers v. Henry Ford Health Sys., 897 F.3d
763, 776–77 (6th Cir. 2018).
However, “[t]emporal proximity alone generally is not sufficient to
establish causation.” Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th
Cir. 2020) (emphasis added). Cases in which temporal proximity alone
suffices to show causation are “rare” and generally require that “an
adverse employment action occurs very close in time after an employer
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learns of a protected activity.” Mickey, 516 F.3d at 525 (emphasis added);
see also Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir.
2010) (“At this point, our case law can fairly be characterized as
recognizing the possibility that, on a particular set of facts, extremely
close temporal proximity could permit an inference of retaliatory motive
. . . .”) (emphasis added). For example, the Sixth Circuit has found
temporal proximity alone sufficient to show causation where the plaintiff
was terminated “the very day” the defendant learned of his EEOC charge.
Mickey, 516 F.3d at 525. In contrast, “where some time elapses between
when the employer learns of a protected activity and the subsequent
adverse employment action, the employee must couple temporal
proximity with other evidence of retaliatory conduct to establish
causality.” Id. (citing Little v. BP Exploration & Oil Co., 265 F.3d 357,
365 (6th Cir. 2001)).
Plaintiff filed his first MDCR complaint on June 12, 2019. (ECF No.
20, PageID.479.) In his Complaint, Plaintiff alleges that “he had been
blocked from receiving overtime starting September 19, 2019, only three
months after he filed his MDCR racial discrimination complaint.” (ECF
No. 1, ¶ 28.) An adverse employment action within three months of
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protected activity could certainly constitute evidence of a causal
connection. However, Plaintiff does not present any evidence regarding
the September 19 date—or even mention the September 19 date—in his
summary judgment briefing. Rather, Plaintiff alleges in general terms
that he was “constantly” denied weekend overtime. (ECF No. 20,
PageID.481.)
Plaintiff’s response brief mentions only one specific date on which
he alleges he was denied overtime: April 2, 2022. (See ECF No. 20,
PageID.481, 487.) Because over two years and nine months passed
between his MDCR discrimination complaint and April 2, 2022, this more
specific allegation does not involve the sort of temporal proximity that
constitutes evidence of causation—let alone sufficient evidence to show
causation by itself. See, e.g., Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668,
676 (6th Cir. 2013) (noting that “multiyear gaps” between protected
conduct and retaliatory acts are insufficient to establish a causal
connection); Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007) (noting
an absence of “authority holding that a causal connection exists where
there has been a gap of multiple years”). Accordingly, this is not the “rare”
sort of case in which temporal proximity alone suffices to show causation.
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Nor has Plaintiff produced additional evidence that, alongside temporal
proximity, might support an inference of causation.
There is one final problem with Plaintiff’s reliance on temporal
proximity to establish causation: Plaintiff alleges that he was denied
weekend overtime continuously during his employment, rather than only
after he engaged in protected activity. (See, e.g., ECF No. 20, PageID.481
(“Plaintiff also testified that he was constantly denied the ability to work
weekends during his time at NYX.”); ECF No. 20-2, PageID.526 (alleging
retaliation because Defendant “has continued to deny me overtime”)
(emphasis added).) In fact, the basis for Plaintiff’s discrimination
complaint to MDCR was that he was already being denied overtime. (See
ECF No. 16-3, PageID.317 (“Since February 2019 . . . I have constantly
requested overtime . . . but was constantly denied.”).)
If temporal proximity, by itself, rarely satisfies causation, it is even
less likely to satisfy causation when the adverse action actually preceded
the protected activity. Cf. Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 272 (2001) (noting that employers “proceeding along lines previously
contemplated . . . is no evidence whatever of causality”). Along these lines,
the Sixth Circuit has previously found that a plaintiff could not show
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causation where “the alleged retaliatory actions . . . were part of an
ongoing pattern that predated the [protected activity].” Stewart v. Esper,
815 Fed. Appx. 8, 21 (6th Cir. 2020).
The circumstances here are like those in Stewart. Plaintiff himself
alleges that the overtime denials were part of an ongoing pattern that
predated his protected activity, the MDCR complaint. On these facts, a
rational factfinder could not infer a causal connection between Plaintiff’s
protected activity and the alleged overtime denials. Because he can
establish neither an adverse employment action nor a causal connection,
Plaintiff has failed to establish a prima facie case of retaliation.
Accordingly, the Court grants summary judgment on Plaintiff’s
retaliation claims.
B. Discrimination Claims – Counts IV and V
Counts IV and V allege racial discrimination in violation of 42
U.S.C. § 1981 and ELCRA respectively. Discrimination claims under 42
U.S.C § 1981 and ELCRA are reviewed under the same standard. Rogers
v. Henry Ford Health Sys., 897 F.3d 763, 771 (6th Cir. 2018). Like
retaliation claims, discrimination claims based on circumstantial
evidence are subject to the McDonnell Douglas burden-shifting
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framework. Id. Under this framework, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination. Id. To
establish a prima facie case of race discrimination, a plaintiff must show
that:
(1) He was a member of a protected class;
(2) He suffered an adverse employment action;
(3) He was qualified for the position; and
(4) He was treated differently than a similarly-situated, non-
protected employee.
Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006) (citing
DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)).
If a plaintiff succeeds in establishing a prima facie case of
discrimination, the burden shifts to the defendant “to put forth a
‘legitimate, nondiscriminatory reason’ for the complained of adverse
treatment.” Id. at 706 (citing DiCarlo, 358 F.3d at 414). “If the defendant
meets this burden . . . the plaintiff then needs to show that the
defendant's ‘legitimate nondiscriminatory reason’ was a ‘pretext for
discrimination.’” Id. at 706–07 (quoting DiCarlo, 358 F.3d at 414–15).
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Here, as with the retaliation claims, Defendant argues that
Plaintiff has failed in his initial burden to establish a prima facie case of
discrimination. (See ECF No. 16, PageID.270–273.) Defendant does not
dispute that Plaintiff is a member of a protected class, or that Plaintiff is
qualified for his position. Rather, Defendant argues that Plaintiff has not
suffered an adverse employment action and that he has not identified a
comparator outside of his protected class who was treated more
favorably. (See id. at PageID.272–273.) For the reasons set forth below,
the Court agrees.
1. Adverse Employment Action
Plaintiff alleges the same adverse employment actions in his
discriminations claims as in his retaliation claims. Specifically, Plaintiff
alleges (1) that he was temporarily laid off before others with less
seniority and (2) that “he was frequently denied voluntary overtime that
was given to his coworkers.” (ECF No. 20, PageID.485.)
The Court will not consider the alleged temporary layoffs because,
as set forth above, those claims were not included in Plaintiff’s
Complaint. As the Court has explained, Plaintiff was therefore obligated
to seek to amend his Complaint to include the temporary layoff
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allegations—he cannot simply spring them on Defendant in his summary
judgment briefing.
The overtime denial allegations, on the other hand, were included
in Plaintiff’s Complaint. As set forth above, however, the only evidence of
overtime denials presented by Plaintiff consists of Plaintiff’s own vague,
conclusory deposition testimony. Plaintiff has therefore failed to present
evidence that would permit a rational factfinder to conclude he suffered
an adverse employment action. Accordingly, Plaintiff has failed to
establish a prima facie case of discrimination.
2. Similarly Situated Comparator
Even if Plaintiff could show an adverse employment action,
Plaintiff has failed to present evidence that would permit a rational
factfinder to conclude he was treated differently than a similarly-
situated, non-protected employee.
In its motion for summary judgment, Defendant argues that
Plaintiff has failed to identify a similarly-situated comparator who was
treated more favorably because Abdul Hanyn, his only potential
comparator, worked a different shift with different overtime
opportunities. (ECF No. 16, PageID.271.) In his response, Plaintiff
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argues that he has “also identified another individual, Ahmed, who
received overtime not available to Plaintiff during the time that he
worked in the same shift and department as Plaintiff.” (ECF No. 20,
PageID.486.) Defendant replies that Plaintiff’s allegations regarding
Ahmed “are no more than self-serving speculation, as there is no record
evidence of Ahmed’s work schedule or overtime hours.” (ECF No. 21,
PageID.533.)
As with Plaintiff’s overtime denial allegations, it is not true that
Plaintiff has presented no evidence that Ahmed was similarly situated
and received overtime not available to Plaintiff. Plaintiff points to his
own deposition testimony that Ahmed worked weekend overtime while
working on the same shift as Plaintiff. (See ECF No. 20, PageID.486.) As
set forth above, a plaintiff’s testimony alone may sometimes defeat a
motion for summary judgment. See Moran v. Al Basit LLC, 788 F.3d 201,
206 (6th Cir. 2015). As the Court has explained, however, there is a
distinction between testimony consisting of specific factual allegations
and testimony consisting of bare assertions and conclusory allegations.
See Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020).
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In Milczak v. GM, LLC, 102 F.4th 772, 787 (6th Cir. 2024), for
example, the Sixth Circuit found that a plaintiff had failed to present
evidence that would permit a factfinder to conclude that the plaintiff’s
proposed comparators were similarly situated or treated more favorably.
The Sixth Circuit noted that the plaintiff had “provide[d] no relevant
dimension of comparison for these other employees, such as job title,
location, or age.” Id. In addition, the plaintiff’s evidence that his
comparators were treated more favorably that the plaintiff’s “rest[ed]
solely on office gossip recounted in his own deposition testimony” and
“lack[ed] any information specific enough to create a genuine issue of
material fact.” Id.
The circumstances here are similar. Plaintiff’s evidence of a
similarly-situated comparator consists entirely of his own deposition
testimony that Ahmed worked the same shift and worked weekend
overtime. (See ECF No. 20, PageID.486.) Despite the benefit of a full
discovery period, Plaintiff has not supplemented these bare assertions
with any documentary evidence. While Plaintiff’s deposition testimony
alone could defeat summary judgment, it will not do so if it consists only
of vague, conclusory allegations. Like the deposition testimony in
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Milczak, Plaintiff’s deposition testimony lacks any information specific
enough to create a genuine issue of material fact.
Because he can establish neither an adverse employment action nor
a similarly-situated comparator who was treated more favorably,
Plaintiff has failed to establish a prima facie case of discrimination.
Accordingly, the Court grants summary judgment on Plaintiff’s
discrimination claims.
C. Wage and Overtime Claims – Counts VI, VII, and VIII
Plaintiff has stipulated to the dismissal of his FLSA, PWFBA, and
IWOWA claims. Accordingly, the Court grants summary judgment on
these claims.
IV. Conclusion
For the reasons set forth above, the Court GRANTS Defendant’s
motion for summary judgment. (ECF No. 16.)
IT IS SO ORDERED.
Dated: November 4, 2025 	s/Judith E. Levy
Ann Arbor, Michigan 	JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 4, 2025.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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