Gloria Oliver v. St. Luke's Dialysis LLC, et al

Filing

OPINION: the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., AUTHORING Circuit Judge; Raymond M. Kethledge, Circuit Judge and Stephen J. Murphy , III, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

Case: 11-3980

Document: 006111391268

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NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0843n.06
FILED

No. 11-3980

Aug 06, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEONARD GREEN, Clerk

GLORIA OLIVER,

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Plaintiff-Appellant,
v.
ST. LUKE’S DIALYSIS LLC, dba SHAKER
SQUARE DIALYSIS; ANN VOGT; JANET
HUTCHINS,

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

Defendants-Appellees.
Before: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*
SILER, Circuit Judge. Plaintiff Gloria Oliver appeals from the district court’s grant of
summary judgment to Defendants St. Luke’s Dialysis, LLC (“St. Luke’s”), Ann Vogt, and Janet
Hutchins on her Age Discrimination in Employment Act (ADEA) and the Ohio Civil Rights Act
(OCRA) claims. For the following reasons, we AFFIRM the district court’s judgment.
I.
Oliver, an African-American female, worked as a patient care technician at St. Luke’s
Dialysis, LLC. In 2009, a St. Luke’s administrator overheard Oliver say to a patient, “Are you
bleeding all over the floor and not telling me? I should slap you in the head.” The administrator
informed Hutchins, a supervisor, of Oliver’s comment. While Oliver admitted to making the
comment, she maintains that she was merely joking with the patient.
*

The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern
District of Michigan, sitting by designation.

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Later the day of the incident, St. Luke’s terminated Oliver for threatening the patient. Oliver
then filed an age discrimination charge with the Ohio Civil Rights Commission and a race and
gender discrimination charge with the Equal Employment Opportunity Commission. Subsequently,
she brought the instant lawsuit pro se with claims for race, sex, and age discrimination, as well as
a failure-to-train claim.
The district court dismissed Oliver’s Title VII gender discrimination claim, her failure-totrain claim, and her ADEA claim against Hutchins and Vogt in their individual capacities. The
district court afforded Oliver leave to amend her complaint to state more definitely her OCRA and
42 U.S.C. §1981 gender discrimination claims. Oliver, now represented by counsel, filed the
operative amended complaint with claims under the OCRA for race and gender discrimination, and
with a claim under the ADEA and OCRA for age discrimination.
The district court granted the defendants’ motion for summary judgment, determining that
Oliver had not sufficiently established evidence for a prima facie case of discrimination. The court
additionally held that even if Oliver had provided proof of a prima facie case, she provided
insufficient evidence to create a genuine dispute of material fact that St. Luke’s stated reason for her
termination was pretextual. On this alternative ground, the district court would also have granted
summary judgment to the defendants.
II.
We review de novo a district court’s grant of summary judgment. Ciminillo v. Streicher, 434
F.3d 461, 464 (6th Cir. 2006). Oliver offers no direct evidence of discrimination, so we evaluate her
claims under the burden-shifting evidentiary framework from McDonnell Douglas Corp. v. Green,

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411 U.S. 792, 802-803 (1973); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir.
2008) (ADEA and OCRA claims).
Initially, Oliver must establish a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. Once she has made such a showing, the burden then shifts to St. Luke’s to
articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 802-03.
Finally, if St. Luke’s meets its burden, Oliver must prove that the proffered reason was merely
pretext for underlying discrimination. Id. at 804-05.
III.
The district court correctly determined that Oliver failed to establish a prima facie case of
age, race, or gender discrimination. To establish such a case, a plaintiff bears the burden of
demonstrating that (1) she was a member of a protected class; (2) she was qualified for her job; (3)
she suffered an adverse employment action; and (4) either a person outside the protected class
replaced her or she received different treatment than a similarly situated non-protected employee.
Chattman v. Toho Tenax Am., Inc., _ F.3d _ , 2012 WL 2866296, at *5 (6th Cir. July 13, 2012);
Geiger v. Tower Auto., 579 F.3d 614, 622-23 (6th Cir. 2009).
Oliver established the first three prongs. First, she is an African-American woman older than
40, making her a member of a protected class for race, gender, and age. See Bailey v. USF Holland,
Inc., 526 F.3d 880, 885 (6th Cir. 2008) (race); Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 432
(6th Cir. 2004) (gender); Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003) (age).
Second, she worked consistently for St. Luke’s for several years and “received two ‘Service
Excellence’ pins, two gift cards, and a thank you card . . . for outstanding performance and coming

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in to work or assist staff on [her] day off,” demonstrating she was qualified for the job she held. See
Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 729 (6th Cir. 1999) (To establish that she was
qualified for a position already held, a plaintiff must “demonstrate that she was meeting her
employer’s legitimate expectations and was performing to her employer’s satisfaction.”). Third, she
was terminated from her position, and termination constitutes an adverse employment decision. See
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007).
Oliver fails to demonstrate the fourth prong, however, resulting in the failure of her prima
facie case. In order to show disparate treatment based on age, race, or gender, Oliver must show that
St. Luke’s treated her differently than individuals outside the protected class who are similarly
situated in all “relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352
(6th Cir. 1998). As to age discrimination, Oliver may show instead that her employer replaced her
with someone outside the protected class. Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d
405, 410 (6th Cir. 2008).
Oliver failed to identify any similarly situated employee outside her protected class. She
attempts to compare her position to Erica Moorer and Timothy Rhein – two Caucasian employees,
one man and one woman, both more than twenty years younger. Oliver’s evidence shows that
Moorer used profanity in front of patients, worked with a hangover most of the time, failed to show
up at least five times, and refused to care for patients, but Moorer’s employment continues. Oliver
also vaguely identifies an instance in which Moorer discussed hypothetical physical violence toward
a previous patient. According to Oliver, Rhein also used profanity in front of patients and failed to
show up for work. Without providing any details, Oliver avers that Rhein also “threatened and

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abused patients on several occasions” for which “he was rewarded.” During her deposition, Oliver
recalled that on one occasion Rhein forcibly pushed a patient into a chair and told him he would
“kick [his] ass.” However, Oliver could not say whether a supervisor ever learned about this
incident.
Even affording all reasonable inferences to Oliver, Moorer does not qualify as similarly
situated because her discussion of a potential threat occurred in a materially different context.
Moorer’s incident of threatened physical violence can be distinguished from Oliver’s by temporal
and physical proximity; when Moorer was heard “going off on how she would have did this to this
patient,” she was speaking in the lunchroom, away from the patient to whom she referred, a day after
having any contact with the patient. Her threat appears to have been indirect and hypothetical
discussion at most, because the occasion and opportunity to carry it out had passed before it was
uttered. Oliver’s statement, however, was made in the presence of and directly to the patient; as in
Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000), we find that this difference is sufficient
to distinguish the severity of the threats. Likewise, Rhein does not qualify as similarly situated
because no evidence suggests his supervisor ever knew about the threat. See Laney v. Ohio Dep’t
of Youth Servs., 448 F. App’x 553, 556 (6th Cir. 2011); Neview v. D.O.C. Optics Corp., 382 F.
App’x 451, 458 n.9 (6th Cir. 2010).
Oliver also fails to establish the fourth prong of her age discrimination claim: that she was
replaced by someone younger. Although she strives to show that Lynette Fellows, a woman twenty
years younger, was her replacement at St. Luke’s, Oliver fails to offer sufficient proof to meet her
burden. See Spees v. James Marine, Inc., 617 F.3d 380, 389 (6th Cir. 2010) (“plaintiff has the burden

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of proving by the preponderance of the evidence a prima facie case of discrimination” (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981))).
Neither Selena Moseley’s affidavit nor Oliver’s affidavit and deposition – together the
evidence that she argues the district court neglected or ignored – establish a prima facie case. Even
though the district court failed to reference the deposition or affidavits in its opinion and order,
reversal is not warranted. None of these filings establish Moorer or Rhein as similarly situated, nor
do they document Fellows to be Oliver’s replacement.
IV.
Even assuming arguendo that Oliver successfully established a prima facie case of
discrimination, she has not advanced sufficient evidence of pretext under the McDonnell Douglas
framework to forestall summary judgment. Oliver’s minimal attempts to demonstrate pretext fall
well short of the mark. First, she argues that the decision to terminate her was pretextual because
no investigative procedures were undertaken to determine the credibility of the charges of her alleged
threat. However, no investigative procedures were warranted, as Oliver admitted to making the
remark. She also contends that complaints about her “work performance was [sic] a pretext to hide
the real motive” behind her termination. However, Oliver immediately thereafter suggests that
Hutchins actually sought to “get rid of a financial burden” and “cut costs,” contentions that conflict
with her protected class discrimination claims. Thus, Oliver has failed to articulate sufficient
evidence of pretext as to reasons for her termination.
AFFIRMED.