Carol Kirkland v. Deborah Jame

Filing

OPINION filed : AFFIRMED, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Jane Branstetter Stranch, Circuit Judge and George C. Steeh, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0593n.06

FILED

No. 16-3041

Nov 03, 2016
DEBORAH S. HUNT, Clerk

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAROL A. KIRKLAND,

)
)
Plaintiff-Appellant,
)
)
v.
)
)
DEBORAH LEE JAMES, Secretary of The Air )
Force,
)
)
Defendant-Appellee.
)
)

BEFORE:

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION

SUTTON and STRANCH, Circuit Judges; and STEEH, District Judge

JANE B. STRANCH, Circuit Judge.

Carol Kirkland, an Air Force employee on

Wright-Patterson Air Force Base in Ohio, brought claims for gender discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against her
employer, Deborah Lee James, Secretary of the Air Force. Kirkland alleged that the defendant
discriminated and retaliated against her by removing leave hours from her annual leave account.
The district court granted summary judgment to the defendant. For the following reasons, we
AFFIRM.
I.

BACKGROUND

Kirkland, a Program Manager, Directorate of Intelligence and Requirements on WrightPatterson Air Force Base in Ohio, was deployed on temporary duty—known as “TDY”—to


The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by
designation.

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Djibouti, Africa, from November 2010 to June 3, 2011. Prior to her deployment, Kirkland
inquired about the procedures for keeping her “use or lose” leave hours, the annual leave time
she had accrued that could not be carried over to the next year. Air Force employees accrue
leave hours based on their years of service, and subject to some exceptions, may accumulate up
to 240 hours of leave. See 5 U.S.C. §§ 6303; 6304(a). Hours accumulated above the 240-hour
threshold are referred to as “use or lose” hours, and must be used by the end of the year or will
be forfeited. 5 U.S.C. § 6304(a).
At the time of Kirkland’s deployment in November 2010, she had accrued 104 use or lose
hours. Kirkland’s Timekeeper and Customer Service Representative, Kathy Taylor, told her that
these hours would be automatically restored to her while she was on temporary duty. Taylor
subsequently restored Kirkland’s 104 hours by placing them into a Restored Annual Leave
(“RAL”) account, a type of account used to hold annual leave hours in excess of the maximum
number an employee can typically carry over into the next year, if those hours were forfeited due
to “‘exigencies of service’ and the leave was scheduled in advance.”
Kirkland returned from Djibouti in June 2011. Between her return and the end of the
year, she used a total of 188.5 hours. During this time, Kirkland made two more requests for
Taylor to place additional leave hours in her RAL account, and asked to have her leave ceiling
increased from 240 to 360 hours based on her deployment to Djibouti.

Taylor placed

109 additional hours in Kirkland’s RAL account, as requested, but did not increase her leave
ceiling.
Shortly after returning from deployment, Kirkland began the process of submitting an
EEO grievance against her supervisor, Dan Faulkner, alleging that he had unfairly given her an
“insufficient performance rating, made a motion to pursue discipline against her, and took

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actions regarding her pay.” Throughout the grievance process, Employee Management Relations
representatives Nellie “Angie” Saylor and Susan Nelson provided “guidance and support” to
Faulkner. (Id.) A few months after Kirkland initiated the grievance process against Faulkner, he
and Saylor had an email exchange regarding Kirkland’s leave. In an email to Faulkner, Saylor
stated that, “Yes, Carol Kirkland’s leave ha[d] been restored,” and requested the name of
Kirkland’s customer service representative so that she could contact her for “some information
[Saylor’s] office need[ed] to obtain.” After Faulkner provided Taylor’s name, Saylor emailed
Taylor to inquire about the restoration of Kirkland’s leave hours, including “how [it] came about,
whom initiated it and why, what research was done to determine her eligibility and who
conducted the research as well as any documentation [Taylor] might have.”
In early 2012, Saylor and Nelson began asking Kirkland questions about her eligibility
for leave hour restoration or an adjustment to her leave ceiling. Saylor also asked her about her
assignment to Djibouti. Kirkland responded to the requests by providing documents on multiple
occasions, including letters showing she had responded to recruitment for deployment, her
official orders, and documents showing her purpose of travel and location.
Nelson took over sole responsibility for issues related to Kirkland’s leave hours in May
2012. After reviewing her deployment orders and Leave and Earnings Statements, she notified
Kirkland that proper procedures had not been followed to restore the 104 use or lose hours she
had forfeited in 2010, though she was entitled to the hours based on her deployment. Nelson
also determined that Kirkland was not entitled to the 109 additional hours that had been restored
to her account, because most of those hours were never forfeited. Nelson noted that Kirkland
had actually used most of these hours between her return from Djibouti in June and the end of
2011, leaving only 19.5 use or lose hours forfeited. While Kirkland’s deployment served as an

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“exigency” that would support restoring 104 hours in 2010, it could not do the same for hours
accrued after the date of her return in 2011. To show she was entitled to the 19.5 hours she
forfeited in 2011, Kirkland would have to provide additional documentation. Finally, Nelson
explained that Kirkland was not entitled to increase her leave ceiling because she had been on
temporary duty, or “TDY,” while deployed. Employees on TDY assignments are limited to the
240 hour maximum, in contrast to those assigned to a permanent or temporary change in station
(“TCS” or “PCS”), who may increase their leave ceiling to 360 hours.
Around this time, other Air Force employees stationed at Wright-Patterson in positions
similar to Kirkland’s were also being deployed abroad in support of Operation Enduring
Freedom. Thomas Lockhart was deployed on temporary duty to Iraq from September 2010 to
February 2011, and again from May to September 2011. Kirkland remembered speaking to
Lockhart about his deployment during the time she was communicating with Saylor and Nelson,
and asking him whether he had any problems getting “his [leave] hours kept on the books.” But
Lockhart did not recall the conversation. Nor did he request any leave restoration or have any
leave restored at this time, because he was able to accumulate and take leave during his
deployment and did not earn “sufficient leave to even warrant requesting an increase” to his
leave ceiling.
Dwaine Young, also a Program Manager and of the same rank as Kirkland, was deployed
on temporary duty to Iraq from April 2010 to November 2011. He forfeited 88 hours of annual
leave in 2010, which he subsequently requested and was restored. Sometime in February 2011,
Young’s leave ceiling was changed from 240 to 360 hours. The defendant states only that this
change was an administrative error, which Nelson says was not discovered until June 2012. The
defendant subsequently chose to change Young’s leave ceiling back to 240 hours, but placed 120

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hours (the difference between 240 and 360 hours) in his RAL account. At some point during this
period, Kirkland overheard Young and Donald Krusynski, their mutual supervisor at the time,
“talking about [Young’s] leave hours being placed in a restored account.” She later spoke to
Young about his experience and confirmed that he had not lost any hours.
The following leave year, ending in January 2012, Young requested 116 hours of annual
leave that he had forfeited while deployed during portions of 2011. Since Young was not
prohibited from taking leave after returning from deployment in November 2011, he was told
that he would need to provide documentation to show that an exigency had prevented him from
using his accrued leave before the end of the leave year. When he did not provide such
documentation, the 116 hours were forfeited.
Over the course of 2012, Nelson continued to investigate her interpretation of the leave
restoration process and leave ceiling limitations as part of an audit into Kirkland’s leave history.
In mid-July, she emailed the Air Force Civilian Deployment Management Branch for guidance
on whether employees on TDY orders were entitled to increase their leave ceilings above
240 hours, as Kirkland had requested. A Performance Program Manager confirmed Nelson’s
position that “employees in a TDY from a duty station in the U.S. will experience no change to
their leave accrual and carryover, and will be limited to the normal 240 hours.”
On July 23, 2012, Nelson and Saylor attended a mediation regarding Kirkland’s claims
against her supervisor, Faulkner, and “provided information” on Faulkner’s behalf. Kirkland’s
claim was settled through the mediation, and approximately one week later she was moved from
Faulkner’s supervision and assigned to a new interim supervisor, Donald Kruszynski.
Questions about Kirkland’s leave accrual and restoration, however, continued. Nelson
and her supervisor, Brenda Thomas, held an in-person meeting with Kirkland to discuss her

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leave accrual issues. During the meeting, Kirkland stated that Faulkner had “cancelled a leave
request resulting in the loss of the 19.5 hours” at the end of 2011 and that she would provide
documentation to support this claim, but failed to do so. After the meeting, Nelson and Thomas
contacted Headquarters Air Force and Air Force Materiel Command to confirm their
interpretations of the leave policy.

A representative from Labor and Employee Relations

confirmed that when an employee returns from deployment in the middle of the leave year, the
policy for deployed employees would no longer apply at the end of the leave year. The
representative also confirmed that employees on TDY orders were not eligible to increase their
leave ceilings above 240 hours.
Following this clarification, Robin E. Williams, Chief of Labor & Employee
Management Relations at the Civil Personnel Office, issued a memorandum to Kirkland
explaining that she was not entitled to increase her leave ceiling due to her TDY status during
deployment. The memorandum also stated that, as a result of Kirkland’s request for corrections
to leave in her RAL account, her office had conducted an audit of Kirkland’s Master Leave
History to determine how much annual leave met the requirements for restoration in accordance
with 5 U.S.C. § 6304(d). The audit found that Kirkland had forfeited 19.5 use or lose hours in
2011, and that while she had not established a valid exigency for their restoration, she could still
do so by providing documentation. Finally, the audit found that 89.5 leave hours from 2011 had
been improperly restored to Kirkland’s RAL account, because Kirkland had actually used the
leave following her return from Djibouti. The memorandum notified Kirkland that these hours
would be removed from her account.
Kirkland filed a complaint in District Court in December 2013, alleging discrimination
on the basis of sex and retaliation in violation of Title VII. Defendant’s motion for summary

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judgment was granted. The court concluded that Kirkland failed to establish a prima facie claim
for either sex discrimination or retaliation, and she could not show that the defendant’s proffered
reasons for denying her leave or refusing to increase her leave ceiling were pretext for
discrimination. Kirkland challenges the district court’s determination that she has not satisfied
the standard for a prima facie case of sex discrimination or retaliation, as articulated in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), as well as the district court’s analysis of
pretext.
II.

ANALYSIS

This court reviews a district court’s grant of summary judgment de novo and considers
the facts and any inferences drawn in the light most favorable to the non-moving party.
Henschel v. Clare Cty. Rd. Comm’n, 737 F.3d 1017, 1021-22 (6th Cir. 2013).

Summary

judgment is appropriate when there is no genuine issue as to any material fact. Fed. R. Civ. P.
56(a). The burden falls to the moving party to demonstrate that no genuine issues of material
fact exist. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The central inquiry at the
summary judgment stage 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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A.

Step 1 – Prima Facie Case

The district court determined that Kirkland could not establish a prima facie case of
gender discrimination because she could not show that another similarly situated employee
outside of her protected class was treated more favorably with respect to leave hours. The court
also rejected Kirkland’s retaliation claim, ruling that she had failed to establish a prima facie

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claim because she was not “treated differently than her peers” and did not establish a causal
connection to her previous EEO activity.
Title VII prohibits an employer from discriminating against any person regarding the
terms, conditions, or privileges of employment because of sex, and from “discriminat[ing]
against any of [its] employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by [Title VII].”

42 U.S.C. §§ 2000e-2(a)(1); 2000e-3(a).

To establish a claim of discrimination under Title VII, a plaintiff must present either direct or
circumstantial evidence of discrimination by an employer. Wheat v. Fifth Third Bank, 785 F.3d
230, 237 (6th Cir. 2015). Where, as in Kirkland’s case, a plaintiff offers no direct evidence of
discrimination by the employer, courts apply the burden-shifting inquiry set forth in McDonnell
Douglas. See 411 U.S. at 802-03; see also Wheat, 785 F.3d at 237; Fuhr v. Hazel Park Sch.
Dist., 710 F.3d 668, 673 (6th Cir. 2013), abrogated on other grounds by Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
For both a sex discrimination and retaliation claim, the first step of McDonnell Douglas
requires a plaintiff to establish a prima facie case. Jackson v. VHS Detroit Receiving Hosp., Inc.,
814 F.3d 769, 776 (6th Cir. 2016); Fuhr, 710 F.3d at 674. Upon proof of a prima facie case, the
burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the
employment decision. Wheat, 785 F.3d at 237; see also Ondricko v. MGM Grand Detroit, LLC,
689 F.3d 642, 653 (6th Cir. 2012). If the employer provides such a reason, the burden shifts
back to the plaintiff to show that “the legitimate reasons offered by the employer were not its
true reasons, but rather were pretext for unlawful discrimination.” Ondricko, 689 F.3d at 653.
We have “held consistently that a plaintiff’s burden of establishing a prima facie case is not an
onerous one.” Wheat, 785 F.3d at 237.

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To establish a prima facie case of sex discrimination, a plaintiff must show that she was
(1) a member of a protected class, (2) subjected to an adverse action, (3) qualified for the job,
and that (4) another similarly situated employee, not in the protected class, was treated more
favorably.

Jackson, 814 F.3d at 776.

Similarly, the plaintiff has the initial burden of

establishing a prima facie case of retaliation, which also consists of four elements: (1) the
plaintiff engaged in activity protected under Title VII, (2) the exercise of plaintiff’s protected
rights was known to the defendant, (3) the defendant subsequently took an adverse employment
action against the employee “or the employee was subjected to severe or pervasive retaliatory
harassment by a supervisor,” and (4) there was a causal connection between the protected
activity and the adverse employment action or harassment. Fuhr, 710 F.3d at 674. Our caselaw
explains that a causal connection is established when the plaintiff “proffer[s] evidence sufficient
to raise the inference that her protected activity was the likely reason for the adverse action.”
Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009) (quoting EEOC v. Avery
Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)).
In analyzing the prima facie case in each of Kirkland’s claims, the district court relied on
older, out of circuit or unpublished cases.

For example, in analyzing Kirkland’s sex

discrimination claim, the district court’s holding cited only Dartmouth Review v. Dartmouth,
889 F.2d 13 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriquenos en
Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004), without reference to our applicable precedent.
In Ercegovich v. Goodyear Tire & Rubber Company, 154 F.3d 344, 352 (6th Cir. 1998) (quoting
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802) (6th Cir. 1994)), we explained that a
plaintiff is not required to “demonstrate an exact correlation with the employee receiving more
favorable treatment in order for the two to be considered ‘similarly-situated,’” and that they need

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only be “similar in ‘all of the relevant aspects.’” See also Jackson, 814 F.3d at 777. Whether or
not the differing treatment was justified by a legitimate, nondiscriminatory reason, moreover, is a
question left for the third step—pretext. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
660-61 (6th Cir. 2000) (stating that, “when assessing whether a plaintiff has met her employer’s
legitimate expectations at the prima facie stage of a termination case, a court must examine
plaintiff’s evidence independent of the nondiscriminatory reason ‘produced’ by the defense as its
reason for terminating plaintiff”). At the prima facie stage, all a plaintiff must show is that a
similarly-situated comparator was given favorable treatment.
Under the facts of this case, however, we need not resolve whether Kirkland made a
prima facie case of discrimination or retaliation because her claims fail at step three—she has not
shown that the Air Force’s neutral reasons for reducing her leave hours were pretextual. We turn
to that analysis now.
B.

Steps Two and Three – Reasons and Pretext

Following the prima face analysis, the McDonnell Douglas framework asks whether the
defendant has met its burden of offering a legitimate, non-discriminatory reason for the action,
and then whether the plaintiff can show that the proffered reason is a pretext for discrimination.
See Jackson, 814 F.3d at 778-79.
The defendant asserts three reasons to justify the actions taken against Kirkland: (1) she
was not entitled to a leave ceiling increase because 5 U.S.C. § 6304(b) only applies to Air Force
employees on PCS or TCS deployment orders, and Kirkland’s orders were for TDY deployment;
(2) 89.5 hours were removed from her RAL account because they were never actually forfeited,
and Kirkland failed to provide documentation to show she was entitled to their restoration; and
(3) 19.5 forfeited hours from 2011 were not restored to her account because she did not provide

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documentation for them. The defendant has met its burden of articulating legitimate, nondiscriminatory reasons for its actions regarding Kirkland’s leave.
The district court concluded that summary judgment was also appropriate because
Kirkland could not show that the defendant’s reasons for removing her leave hours were pretext
for discrimination. A plaintiff can meet her burden on this step of the McDonnell Douglas test
by showing that the employer’s proffered reasons (1) have no basis in fact; (2) did not actually
motivate the adverse action; or (3) were insufficient to explain the adverse action. See Loyd v.
St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014) (citing Wexler v. White’s Fine
Furniture, 317 F.3d 564, 576 (6th Cir. 2003) (en banc)). A plaintiff must produce “sufficient
evidence from which the jury could reasonably reject [the defendant’s] explanation and infer that
the defendant[] . . . did not honestly believe in the proffered nondiscriminatory reason for its
adverse employment action.” Braithwaite v. Timkin Co., 258 F.3d 488, 493-94 (6th Cir. 2001).
In keeping with the burden required at the summary judgment stage, a plaintiff “need only
identify genuine disputes of fact regarding the legitimacy of the defendant’s stated reasons.”
Wheat, 785 F.3d at 240.
Kirkland has not met this burden. She argues that the reasons provided by the defendant
are pretextual because: her hours were removed despite statements from Taylor that they would
be automatically restored, the actions were taken outside the scope of Nelson and Saylor’s job
duties, Kirkland’s leave was frozen for one year while determining her correct leave hour
eligibility, and the wrong policy was used to determine the number of hours she was ultimately
entitled to. Even viewing the facts in the light most favorable to Kirkland, these assertions do
not create a reasonable inference that the defendant’s proffered reasons were illegitimate or
masked a discriminatory or retaliatory motive.

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First, Taylor’s representations that Kirkland was entitled to automatic leave restoration
are not evidence that the defendant’s explanation for her leave removal is pretext. Taylor’s
statements referred to the 104 hours of leave that Kirkland forfeited at the end of 2010 due to her
deployment. Taylor never responded to Kirkland’s request to increase her leave ceiling to
360 hours.

Moreover, Taylor’s subsequent actions restoring these 104 hours without

documentation, as well as 109 hours from 2011 without documentation, were inconsistent with
Air Force policy regarding employees deployed on TDY orders. Nelson and Saylor ultimately
determined, through research confirmed by Headquarters Air Force and Air Force Materiel
Command, that Kirkland was not entitled to restoration of these 109 hours without further
documentation, nor an increase in her leave ceiling based on her deployment status. Kirkland
has not shown that the discrepancy between Taylor’s representations and the subsequent removal
of her leave hours was due to anything other than an analysis of Air Force rules and regulations.
Second, Kirkland also states that Nelson and Saylor acted outside their job duties.
Kirkland’s assertions are without any supporting evidence. Nelson herself states that her job
duties as a Human Resources Specialist (Employee Relations) include “advising management on
a wide range of . . . conduct and performance issues . . . including leave and absences.” Saylor
occupied the same position as Nelson. Kirkland’s conclusory allegations are insufficient to meet
the burden of showing that the defendant’s proffered reasons are pretext for discrimination.
Third, Kirkland states that her leave was frozen for a year during the inquiry into her
leave restoration without justification. The issue is not that Kirkland’s hours were frozen, but
whether it was done as pretext for discrimination or retaliation. The record is unclear on when
her leave was frozen, for how long, and how it was communicated to her. Kirkland’s December
2011 emails to Taylor indicate that she was able to take leave at that point, as she states that she

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was using some of her hours before the end of the year so as not to lose them. Starting in
February 2012, Nelson and others were investigating the proper number of hours Kirkland was
entitled to, which would have justified a temporary freeze on her use of those hours. Kirkland
has not shown that her hours were frozen for any reason other than to ensure that proper Air
Force rules and regulations were followed.
Finally, Kirkland argues that the defendant applied an incorrect policy in determining her
leave hours, and she should have been eligible for a leave ceiling increase under 5 U.S.C.
§ 6304(b). Kirkland does not dispute that she was on TDY orders in Djibouti, but states that her
leave ceiling should have been increased because she was an employee assigned to a combat
zone. Under the policy interpretation used by Nelson and Thomas and asserted by the defendant,
these designations are not mutually exclusive.

Rather, the relevant distinction is between

employees deployed on TDY orders versus PCS or TCS orders. This understanding of the
applicability of § 6304(b) was confirmed by Headquarters Air Force and Air Force Materiel
Command.

Kirkland has failed to provide evidence that she met the requirements for an

increased leave ceiling under § 6304(b) either as an employee deployed on TCS or PCS orders,
or that the statute should also apply to her deployment on TDY orders.
As reasons for the actions taken against Kirkland, the defendant cites its rules and
regulations governing leave for employees deployed on TDY orders and its policies regarding
the documentation required to show that forfeited leave should be restored. Kirkland fails to
provide sufficient evidence to show that these policies have no basis in fact, did not actually
motivate the adverse action against her, or are insufficient to explain the adverse action.
Kirkland does not dispute that she was on TDY orders, nor that she used 188.5 hours of leave—
which includes the 109 hours the defendant states were erroneously placed into her RAL

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account—after returning from Djibouti in June 2011. The evidence Kirkland offers fails to meet
her burden of showing that the defendant removed leave from her account as a pretext for either
sex discrimination or retaliation.
III.

CONCLUSION

Kirkland has not shown that the defendant’s proffered reasons for removing her leave
hours were pretext.

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment to defendant.

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